Export with payment of IGST

GST – Started By: – Sarath chandran – Dated:- 9-1-2019 Last Replied Date:- 12-1-2019 – Sir,Can we utilize accumalated ITC for payment of Export IGST (Export with payment of IGST) ?Sandeep V Anand – Reply By Madhavan iyengar – The Reply = Yes u can use the accumulated ITC for exports on payment of IGST. It is presumed that the accumulated ITC includes only eligible ITC ( excluding negative list)since you have not applied for a LUT u have to go for payment of IGSTU can also apply for LUT so that you can clear without payment of IGST and claim refund of ITC – Reply By SHARAD ANADA – The Reply = You can use accumulated ITC of input, input services and capital goods for payment of IGST on export of goods with payment of tax and you can claim re

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RAJESH ACCOUNTANT

GST – Started By: – rajesh subramanian – Dated:- 9-1-2019 Last Replied Date:- 19-1-2019 – DEAR SIRWE ARE PVT LTD COMPANY, WE ARE PAYING 11500 / PER MONTH AS SECURITY CHARGES ( MONTHLY SALARY FOR NIGHT SHIFT ) TO AN INDIVIDUAL . THIS WILL COVER UNDER RCM ? IF WE ARE PAYING GST UNDER RCM , SHL WE TAKE CREDIT ? – Reply By KASTURI SETHI – The Reply = See Serial No.14 of Notification No.29/18-CT(Rate) dated 31.12.18 effective from 1.1.19. ITC can be taken after payment of tax in cash. – Reply By Gan

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FAQs on levy of GST on Supply of Services to Co-operative Society dated 05-09-2017

GST – General FAQ on GST – Frequently Asked Questions – 170905-01 – Q. 1 The society collects the following charges from the members on quarterly basis as follows : 1. Property Tax-actual as per Municipal Corporation of Greater Mumbai (MCGM) 2. Water Tax-Municipal Corporation of Greater Mumbai (MCGM) 3. Non-Agricultural Tax-Maharashtra State Government 4. Electricity charges 5. Sinking Fund-mandatory under the Bye-laws of the Co-operative Societies 6. Repairs & maintenance fund 7. Car parking Charges 8. Non-Occupancy Charges 9. Simple interest for late payment. From the tax/charge as listed above, on which GST is not applicable ? Ans. 1. Services provided by the Central Government, State Government, Union territory or local author

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T, as these charges are collected by the RWA/Co-operative Society for supply of services meant for its members. Q. 2. As per guidelines on maintenance charges upto ₹ 5000/- no GST is applicable. Maintenance charges means only maintenance or collection of all charges ? Ans. This is applicable to only the reimbursements of charges or share of up to an amount of five thousand rupees per month per member for sourcing of goods or services from a third person for the common use of its members. Here, charges mean the indivisual contributions made by members of the society to avail services or goods by the society from a third party for common use. [*Entry 77(c) of notification no. 12/2017 Central Tax (Rate), dated 28-6-2017 refers] Q. 3. Mon

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FAQ on Banking, Insurance and Stock Brokers Sector dated 01-07-2017

GST – General FAQ on GST – Frequently Asked Questions – 170701-01 – Q. 1. Whether banks are required to capture the details of ATMs in registration certificate as a place of business ? Ans. No. Banks are not required to provide the details of ATMs while applying for registration. For the purposes of registration, ATM on its own does not constitute a place of business, as defined in the CGST Act, 2017. Q. 2. As per RBI guidelines, Banks can use third party ATMs, Business Corres-pondents (BC), Customer Service Points (CSP) or third party warehouses. Are Banks required to include these third party places also in their GST registration? Ans. No. Third party places are neither places of business nor fixed establishments from where Banks ordinarily carry on their business. These are independent service providers to the Bank which are subject to GST. Thus, these places are not required to be declared as place of business by the Bank. Q. 3. What will be the time of supply in respect of servic

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t for such supplies has been made (prior to issuance of invoice) as advance before the 1st of July, 2017, the tax would be payable under the law prevalent prior to 1st July, 2017, as the point of taxation had arisen before this date to the extent of advance. Q. 5. Is it necessary for banks/ insurers to report the details of exempt and non-GST supplies in Table 8 of GSTR-1? Ans. Yes. In the absence of any specific exemption to the banks/insurers, the information is required to be provided in the said table. Q. 6. Is it necessary for banks/ insurers to report the details of invoices in Table 13 of GSTR-1? Ans. Rule 54(2) of the CGST Rules, 2017 provides that in case of an insurer or a banking company or a financial institution, including a non-banking financial company, the tax invoice or any other document in lieu thereof, may not be serially numbered. But this does not mean that such document will not have any identification number which is required for the purpose of matching. The sai

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or all recipients is available in cases where the turnover in States/Union territories for the previous financial year is not available. Therefore, in such cases, for the quarters after July, 2017 to September, 2017, the State/UT-wise turnover for the purposes of ISD can be determined based on the turnovers for the quarter of July, 2017 to September, 2017. For the months of July, August and September, 2017, the turnover for the month of July, 2017 may be considered for the purposes of distribution of credit. Q. 9. Is the condition to make payment for the value of supply plus the GST there-on required to be complied with by the recipient to claim the input tax credit where supplies for services are made between distinct persons? Ans. No, this condition is not required to be complied with by the recipient. As per the proviso to sub-rule (1) of Rule 37 of the CGST Rules, 2017 the value of supplies made without consideration as specified in paragraph 2 of Schedule I of the CGST Act, 2017 s

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not required to serially number its invoices/ document for supply of its services, how will the service recipient get credit for GST on the services provided by the bank? Ans. Under Rule 54(2) of the CGST Rules, 2017 a banking company or a financial institution including a NBFC or an insurer can issue an invoice or any other document in lieu thereof whether or not serially numbered and whether or not containing the address of the recipient but containing other information as mentioned under Rule 46. There is no restriction on the invoice/document being a consolidated invoice/document but it must bear an identification number, which need not necessarily be serially numbered. The recipient of service will get the credit for GST so long as the bank, etc., uploads the details of the invoice/document under that number with GSTIN of the recipient in its statement in FORM GSTR-1. Q. 12. Is the registered person procuring goods or services from a supplier outside India required to raise a self

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ly. This invoice, debit note or credit note for each such supply should be reported in the GST return of the month in which the supply takes place as per the provisions of Section 12(3) or 13(3) of the CGST Act, 2017. As the import of goods would be under the cover of a bill of entry, there is no need to raise a self-invoice. It may, however, be noted that Section 9(4) of the CGST Act, 2017/Section 5(4) of the IGST Act, 2017 has been suspended vide Notification No. 38/2017-Central Tax, as amended from time to time. Q. 13. For supply of taxable services, can a digitally signed invoice be issued in duplicate, with the original being marked as Original and the duplicate copy being marked as Duplicate ? Ans. In the context of digitally signed documents, the requirement of issuing original and duplicate invoices does not arise. A digitally signed invoice can be retained by the supplier and also be made available to the recipient. Q. 14. Is there a requirement to issue a payment voucher at t

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quipment may be moved by the Banks to the location of the third party service providers and after repairs, the equipment may be moved to a central/regional location for the purpose of programming, encryption, reconfiguration, etc. and thereafter to that place of business from where the equipment had been sent earlier. The equipment can be moved between such locations on the basis of a delivery challan . Q. 16. Is a Bill of Supply to be issued by a bank for exempt services like interest on loans and advances, interse sale or purchase of foreign currency amongst banks? Ans. As per clause (c) of sub-section (3) of Section 31 of the CGST Act, 2017 read with Rule 49 of the CGST Rules, 2017, there is a requirement for issuance of bill of supply for supply of exempt services by Banks. It may be noted, however, that there is no need to issue a separate bill of supply in case any invoice or document has already been issued in accordance with the provisions of any other law. Further, in view of

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ullion business, whether the requirement for reversal of 50 per cent. will also apply to bullion purchased by the Bank? Ans. In terms of Section 2(94) read with Section 25(4) & (5) of the CGST Act, 2017, a person is required to obtain more than one registration within a State or more than one State shall be treated as a distinct person for each such registration. Section 17(4) of the CGST Act, 2017 is applicable qua each registration and not for the bank as a whole, provided each of the business verticals is separately registered. Therefore, a bank engaged in trading in bullion may not opt for 50 per cent. reversal in respect of its purchases of bullion, where it is separately registered as a business vertical. Q. 19. Where there is a supply of goods or services between registered branches of a banking company on which GST is paid, will the recipient branch/office be eligible for 100% credit of the GST charged on such supply where the bank elects the 50% option to avail input tax c

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cated outside India would be liable to 50% reversal. Q. 21. Whether the provision of Section 18(6) for reversal of input tax credit availed on capital goods be applicable to banks only to the extent of the input tax credit availed? Ans. Yes. The provisions of Section 18(6) of the CGST Act, 2017 for reversal of input tax credit availed on capital goods would be applicable to banks only to the extent of the input tax credit availed by it. In case the Bank opts to avail input tax credit to the extent of 50% in terms of the second proviso to Section 17(4) of the CGST Act, 2017, reversal of credit would be in proportion to the actual credit availed by the Bank i.e. only with reference to 50% of the input tax credit availed by it on capital goods. Q. 22. Can a bank/insurer defer the availment of input tax credit for a month or quarter and avail of the same in subsequent months? Ans. Yes. As per Section 16(4) of the CGST Act, 2017, availment of input tax credit can be deferred and availed up

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ion of the recipient of services on the records of the supplier of services if services are provided to an unregistered person. Address available on records of the insurance company, which is ordinarily used for communication with the customer, may be considered as the place of supply . Q. 24. With respect to registered customers, whether the bank/insurance company is required to ascertain the place of consumption of service or whether the Bank can rely upon the GSTIN provided by the Customer? Ans. The bank/insurance company can rely upon the GSTIN provided by the customer. Q. 25. Would intermediary ser-vices provided to an off-shore client and services provided by a banking company to its offshore account holders be treated as an intra-State supply or an inter-State supply for payment of GST? Ans. Under clause (b) of Section 13(8) of the IGST Act, 2017 the place of supply of such services is the location of the provider of services. As the location of supplier and place of supply are

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matic mission or consular post in India or for personal use or for the use of the family members of diplomatic agents or career consular officers posted therein? Ans. Yes, the bank/insurer is required to charge GST in such cases. However, as per Section 55 of the CGST Act, 2017, subject to such conditions and restrictions as may be prescribed, such service recipients would be entitled to claim a refund of taxes paid on the notified supplies of services received by them. Q. 29. Who is liable to comply with GST on charges levied by overseas corres-pondent banks facilitating trade and other cross border transactions? Ans. In this case, there are two supplies namely, from bank in India to the importer/exporter and one from the overseas correspondent banks to the bank in India. So the liability to discharge GST on such supplies will be required to be determined accordingly. Q. 30. Will the second proviso to Rule 28 apply in the case of a banking company that selects the 50% option to avail

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rtherance of business will be supply even if imported without consideration. Therefore, where the services are supplied by a supplier without consideration to an unrelated recipient or a person other than a related or distinct person, the same would not amount to supply and not liable to GST. Q. 32. Can value of services be enhanced by invoking the CGST Rules in case of services provided by banks at a concessional/ differential rate to a recipient other than related party / distinct person ? Ans. Banks provide various services to customers for a charge. However, at times, account holders/customers are provided services free or at a concessional/differential rate. The free or concessional/differential rate is offered considering factors such as credit rating and stability of the customer, size of relationship, expected future business or the opportunity presented in the market elsewhere, etc. As a result, the charges for the same service may differ from customer to customer. Such servic

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he same meaning as assigned to it in clause (h) of Section 2 of the Securities Contracts (Regulation) Act, 1956 (SCRA). Derivatives are included in the definition of securities under Section 2(h)(ia) of the SCRA. In terms of Section 2(ac) of SCRA, derivatives includes – (A) a security derived from a debt instru-ment, share, loan, whether secured or unsecured, risk instrument or contract for differences or any other form of security; (B) a contract which derives its value from the prices, or index of prices, of under-lying securities. The definition of derivatives in SCRA is an inclusive definition. As derivatives fall in the definition of securities, they are not liable to GST. However, if some service charges or service fees or documentation fees or broking charges or such like fees or charges are charged, the same would be a consideration for provision of service and chargeable to GST. Q. 35. What is the nature of income/expenditure on Collateralized Borrowing and Lending Obligations

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are neither goods nor services as defined in the CGST Act, 2017, future contracts are not chargeable to GST. But where the future contracts have a delivery option and the settlement of contract takes place by way of actual delivery of underlying commodity/currency, then such forward contracts would be treated as normal supply of goods and liable to GST. Further, if some service charges or service fees or documentation fees or broking charges or such like fees or charges are charged, the same would be a consideration for supply of service and chargeable to GST. Q. 37. Would forward contracts in commodities or currencies be within the ambit of definition of supply ? Ans. A forward contract is an agreement, executed, to purchase or sell a predetermined amount of a commodity or currency at a predetermined future date at a predetermined price. The settlement could be by way of actual delivery of underlying commodity/currency or by way of net settlement of differential of the forward rate o

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ct, 1934 defines repos as an instrument for borrowing funds by selling securities with an agreement to repurchase the securities on a mutually agreed future date at an agreed price which includes interest for the funds borrowed. Section 45U (d) of the RBI Act, 1934 defines reverse repos as an instrument for lending funds by buying securities with an agreement to re-sell the securities on a mutually agreed future date at an agreed price which includes interest for the funds lent. Repos and reverse repos are financial instruments of short term call money market that are normally used by banks to borrow from or lend money to RBI. The margins, called the repo rate or reverse repo rate, in such transactions are nothing but interest charged for lending or borrowing of money. Thus they have the characteristics of loans and deposits for interest and are accordingly exempt from GST [serial no. 27 of the table of Notification No. 12/2017-Central Tax (Rate) dated 28th June, 2017, as amended]. Q.

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no. 27 of the table of Notification No. 12/2017-Central Tax (Rate), dated 28th June, 2017, as amended]. Further, promissory note is included in the definition of money as given in clause (75) of Section 2 of the CGST Act, 2017 and hence not liable to GST. However, if some service charges or service fees or documentation fees or broking charges or such like fees or charges are charged, the same would be a consideration for supply of services and chargeable to GST. Q. 40. Whether assignment or sale of secured or un-secured debts is liable to GST? Ans. Section 2(52) of the CGST Act, 2017 defines goods to mean every kind of movable property other than money and securities but includes actionable claim. Schedule III of the CGST Act, 2017 lists activities or transactions which shall be treated neither as a supply of goods nor a supply of services and actionable claims other than lottery, betting and gambling are included in the said Schedule. Thus, only actionable claims in respect of lotter

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ected over and above the interest or discount would represent taxable consideration and hence liable to GST. Q. 43. To what extent is invoice discounting or cheque discounting or any other similar form of dis-counting exempt under GST? Ans. Discounting of invoices or cheques falls within the meaning of services by way of extending deposits, loans or advances in so far as the consideration is represented by way of interest or discount . Such discounting is exempt from payment of GST, as such discounting is nothing but a manner of extending a credit facility or a loan. However, if some service charges or service fees or documentation fees or broking charges or such like fees or charges are charged, the same would be a consideration for supply of service and chargeable to GST. Q. 44. Is interest on debt instruments exempt from GST? Ans. Yes. As debt instruments such as debentures, bonds, etc., are in the nature of loans, interest thereon will be exempt from GST. Q. 45. Is GST required to

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Bank in financing the asset. Services by way of extending deposits, loans or advances in so far as the consideration is represented by way of interest or discount (other than interest involved in credit card services) is exempt. But, in a financial lease the ownership of the asset is with the bank. In essence, it is a purchase the asset and lend it further transaction for bank. Therefore, neither the services are purely in the nature of extending loans nor the consideration for a financial lease is purely in the nature of interest. Thus, interest on finance lease transactions will be taxable under GST. Q. 48. Where GST is charged on a supply of service and the amounts due from the customer become ire-coverable as a bad debt in commercial practice, would such GST paid on accrual basis be refundable to the service provider by the Government? Ans. The adjustment of GST already paid is allowed only by way of issuance of credit/debit note in terms of Section 34 of the CGST Act, 2017. The p

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supplied by a banking company located in India to account holders located outside India is the location of the service provider i.e. banking company. Account has been defined in Explanation (a) to Section 13(8) of the IGST Act, 2017 to mean an account which bears interest to the depositor, and includes a non-resident external (NRE) account and a non-resident ordinary (NRO) account. Services provided to holders of demand deposits, term deposits, NRE account and NRO account outside India will be covered by the definition of account referred to above. Examples of such services are : (i) services linked to or requiring opening and operation of bank accounts, such as, lending and deposits; (ii) transfer of money including telegraphic transfer, mail transfer, electronic transfer, etc. Q. 51. Which services do not qualify as services provided to account holder as per Section 13(8) of the IGST Act, 2017 and thus the place of supply will be the location of the recipient of services? Following

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shall be the location of the recipient of services. Q. 52. What is the location of the supplier in case of banking and other financial services where multiple locations are involved in providing the services to a customer? Ans. Banking services emanate from the bank account opened by a customer with the branch of a bank or through a contractual relationship between the branch of a bank and the customer. The branch holding the customer s account is referred to as the Account Branch or the Home Branch . An account would include all types of accounts – viz. interest bearing, non-interest bearing, loan account, deposit account, etc. In the present day of anywhere banking , the customer avails banking services through mobile/internet banking or by visiting any branch of the bank. At times the services are provided through branches/locations other than the Account Branch or the Home Branch . It is clarified that the services provided by the other branches are actually services provided to t

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in Section 2(75) of the CGST Act, 2017 to include instruments like cheques, drafts, pay orders, promissory notes, letters of credit, etc. Therefore, activities that are only transactions in such instruments would be outside the definition of service. This would include transactions in Commercial Paper ( CP ) and Certificate of Deposit ( CD ) (as they are in the nature of promissory notes), issuance of drafts or letters of credit, etc. While these transactions would be outside the ambit of supply, the related activity, for which a separate consideration is charged, would be chargeable to GST if other elements of taxability are present. Therefore, GST would be levied on service charges normally charged for various transactions in money including charges for making drafts, issuance charges for letter of credit, etc. Definition of securities includes derivatives . Transactions in instruments like interest rate swaps, and foreign exchange swaps would be excluded from the definition of supp

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outside India. Such services will not be treated as exports in view of the sub-clause (v) of Section 2(6) of the IGST Act, 2017 read with Explanation 1 to Section 8 of the IGST Act, 2017. Q. 55. Will the management oversight or stewardship activities performed in relation to business operations by the Head Office of a bank to a Branch in India be considered as a supply of services by the Head Office even when there is no consideration charged by the Head Office, nor any expenditure recorded in the books of account of the branches? Ans. As per Schedule-I to the CGST Act, 2017, supply of services between distinct entities will be a taxable supply even in absence of a consideration. Q. 56. If tax is payable on provision of management oversight or stewardship services by a related person, what shall be the value of supply when no invoice is raised, no payment is made by recipient or no entry is made in the books of account of the recipient of service? What will be the time of supply? Ans.

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import of gold by the Nominated Bank at the time of clearance of gold by the Customs. Q. 58. Will there be another liability for payment of GST when the gold (metal) is appropriated or drawn from the consignment stock by the Nominated Bank? Ans. The supply of gold (metal) is already deemed to have taken place in terms of para 3 of Schedule I of the CGST Act, 2017 when the same was despatched by the overseas supplier to the Nominated Bank. Since the supply has already taken place, there will not be another supply when the gold is drawn or appropriated by the Nominated Bank from the stock. There will, therefore, not be another levy of GST. Q. 59. In the case of gold (metal) loan, whether the supply of gold (metal) to the jeweller will be deemed to take place at the time of delivery of gold (metal) or at the time when the price of gold (metal) is fixed by the jeweller? Ans. The Gold (Metal) Loan Scheme approved by the Reserve Bank of India is a means of financing. The banks deliver gold

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loan? Ans. The Gold (Metal) Loan Scheme is a means of financing. The jewellers can purchase gold (metal) from the banks on outright basis on payment of the price. The gold (metal) loan only provides an option to the jeweller to avail a loan and pay for gold (metal) at a future date. For this facility, the jeweller pays interest to the Bank. The grant of loan and levy of interest is dependent on the purchase of gold, and therefore, part of the same transaction or facility; therefore the interest, which is the consideration, will not be exempt as per provisions of Section 15(2)(d) of the CGST Act, 2017. Q. 61. What will be the place of supply in cases where the account is held in a bank in one State but some services are availed in a different branch of the same bank in another State. Ans. As per the provisions of Section 12(12) of the IGST Act, 2017, the place of supply of services for a bank is the location of the recipient of the services on the records of the supplier of services. In

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chargeable to GST. Q. 64. Whether GST will be levied on interchange fees on card settlement fees paid/shared by banks? Ans. Fees charged for card settlement is a consideration which is part of a separate transaction between the banks which are parties to this transaction and shall be liable to GST. This is a B2B supply and credit of this transaction is available. Q. 65. What is the leviability of GST on securitization transactions undertaken by banks? Ans. Securitized assets are in the nature of securities and hence not liable to GST. However, if some service charges or service fees or documentation fees or broking charges or such like fees or charges are charged, the same would be a consideration for provision of services related to securitization and chargeable to GST. INSURANCE SECTOR Q. 66. What is the location of the supplier of service for fund management charges in ULIP policies? Ans. The fund management charges are charges towards managing and administering the fund. These fund

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emiums be taxable in cases where the same is not received in convertible foreign exchange or from the NRE Accounts? Ans. No. The amounts paid from the Non-Resident External Accounts are paid in Indian rupees and are not received in convertible foreign exchange. Therefore, the conditions for export of services as provided under Section 2(6) of IGST Act, 2017 are not satisfied. Life Insurance services in such cases would be treated as inter-State supplies and subject to GST. Q. 69. Will the requirements of Letter of Undertaking or Bond be required to be complied with in the case of Life Insurance Premium where the conditions of export of services are satisfied before or at the time of supply of the Life Insurance Service? Ans. Yes. As per Section 16(3) of the IGST Act, 2017, read with Rule 96A of the CGST Rules, 2017, an exporter is required to submit a Letter of Undertaking or Bond in case the export of service is made without payment of integrated tax. Q. 70. What would be the time of

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under Section 142(5) of the CGST Act? Ans. Section 142(5) of the CGST Act, 2017 specifically provides for refund of tax paid under the Finance Act, 1994 in respect of services not provided. The same shall be disposed of in accordance with the provisions of Chapter V of the Finance Act, 1994. Q. 72. Can the input tax credit of Krishi Kalyan Cess be carried forward? Ans. No. It is not permitted in terms of Section 140(1) of the CGST Act, 2017 read with Rule 117(1) of the CGST Rules, 2017. Q. 73. In the case of group insurance policies, a Master Policy is issued; the beneficiaries of the Master Policy may be located in more than one State. In such cases, what will be the place of supply of services? Ans. In the case of issuance of Master/Group Policy to a registered person where the premium charged is a single premium and not segregated based on the beneficiaries of the insurance policies, the place of supply for such policy will be the location of the registered person paying the premiu

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is chargeable to GST. STOCK BROKING SERVICES Q. 77. In the case of stock broking, whether stamp duty or securities transaction tax or other Central or State taxes would be considered as a part of the value of supply as prescribed under Section 15 of the CGST Act, 2017, for levy of GST? Ans. GST is not payable by the stock brokers on these recoveries as long as the conditions of pure agent as provided in Rule 33 of the CGST Rules, 2017 are met. If not, then valuation will be done as per Section 15 of the CGST Act, 2017 read with Rule 27 of CGST Rules, 2017. Q. 78. Is brokerage earned in stock broking service liable to Goods and Services Tax? Ans. Yes. Since the stock brokers are engaged in the business of supplying the stock broking service, appropriate GST is payable on the same. Q. 79. Can a person take voluntary registration under the Act? Ans. Section 25(3) of the CGST Act, 2017 states that a person, though not liable to be registered under Section 22 or Section 24 of the CGST Act,

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he location of the recipient is outside India, the place of supply shall be determined as per Section 13(8) of the IGST Act, 2017 i.e. as an intermediary. Q. 82. Do stock brokers fall in the definition of interme-diary under Section 2(13) of the IGST Act, 2017? Ans. Yes. Since stock brokers arrange the supply of securities between two or more persons, stock brokers would be covered by the definition of intermediary . Q. 83. Would sub-brokers/ Authorized Persons fall in the definition of agent under Section 2(5) of the CGST Act, 2017? What would be the registration requirement for sub-brokers/Authorized Persons in the context of the Goods and Services Tax Regime? Ans. As per Stock Brokers and Sub-brokers Regulation, 1992 issued by SEBI, a sub-broker means any person, not being a member of stock exchange, who acts on behalf of a stock broker as an agent or otherwise for assisting the investors in buying, selling or dealing in securities through such stock brokers . It is, therefore, appa

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tores his goods, supplies or receives goods or services or both; or (ii) a place where a taxable person maintains his books of account; or (iii) a place where a taxable person is engaged in business through an agent, by whatever name called. In case of operations of a stock broker, it is required by law that all transactions would be via screen based trading on the Stock Exchanges. Therefore, the following would be the place of business in case of stock brokers : (i) All the branches of the stock broker where the Stock Exchange Trading terminals are located and where trade is carried out on behalf of clients; (ii) Main office/Head office/Registered Office/Branch office where back office operations are carried out including issuing of bills/contracts/tax invoices/ account statements to the clients. In case of sub-brokers /Authorised Person office, where the premises are neither owned by the stock broker nor rented/ leased in favour of the stock broker and there are no employees on the p

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tegrated tax? Ans. Under Section 19(1) of the IGST Act, 2017 a registered person who has paid integrated tax on a supply considered by him to be an inter-State supply, but which is subsequently held to be an intra-State supply, shall be granted refund of the amount of integrated tax so paid in such manner and subject to such conditions as may be prescribed . Under Section 19(2) of the IGST Act, 2017 a registered person who has paid Central tax and State tax or Union territory tax, as the case may be, on a transaction considered by him to be an intra-State supply, but which is subsequently held to be an inter-State supply, shall not be required to pay any interest on the amount of integrated tax payable . Therefore, in case a registered person has paid Integrated tax instead of Central tax and State tax or Union territory tax, then he shall be granted refund of the amount paid as Integrated tax and he will have to pay Central tax and State tax or Union territory tax. Further, no interes

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ation for the said supply in his books of account. Q. 88. Can the stock broker continue to issue bills and contracts under the normal Stock Exchange mechanism and issue a monthly tax invoice for the purpose of Goods and Services Tax? Ans. The stock broker can issue bills and contracts under the normal Stock Exchange mechanism mentioning the GST amount but will have to issue a tax invoice as envisaged under Section 31(2) of the CGST Act, 2017 read with Rule 47 of the CGST Rules, 2017. Q. 89. What is considered as securities under the Goods and Services Tax Act? Are they taxable under GST? Ans. Section 2(101) of the CGST Act, 2017 defines securities to have the same meaning as assigned to it in clause (h) of Section 2 of the Securities Contracts (Regulation) Act, 1956. Section 2(52) of the CGST Act, 2017 defines goods to mean every kind of movable property other than money and securities but includes actionable claim, growing crops, grass and things attached to or forming part of the lan

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mponent of an enterprise that is engaged in the supply of individual goods or services or a group of related goods or services which is subject to risks and returns that are different from those of the other business verticals. Explanation. – For the purposes of this clause, factors that should be considered in determining whether goods or services are related include – (i) the nature of the goods or services; (ii) the nature of the production processes; (iii) the type or class of customers for the goods or services; (iv) the methods used to distribute the goods or supply of services; and (v) the nature of regulatory environment (wherever applicable), including banking, insurance, or public utilities . It is the choice of the taxable person to build all the services provided in one vertical or separate verticals based on their business models and requirements. They may choose to obtain separate registration as a business vertical in terms of the proviso to Section 25(2) of the CGST Act

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Transitional Provisions

GST – GST FAQ 2nd Edition – June 2017 as Updated as on 1.1.2018 – 24 – Q 1. Will CENVAT credit (or VAT credit) carried forward in the last return prior to GST under existing law be available as ITC under GST? Ans. A registered person, other than a person opting to pay tax under composition scheme, shall be entitled to take credit in his electronic credit ledger the amount of CENVAT (or VAT credit) credit carried forward in the return of the last period before the appointed day, subject to the conditions stated therein. (Section 140(1) of the CGST/SGST Act) Q 2. What are those conditions? Ans. The conditions are that: – (i) the said amount of credit is admissible as input tax credit under this Act; (ii) the registered person has furnished all the returns required under the existing law (i.e. Central Excise and VAT) for the period of six months immediately preceding the appointed date; (iii) the said amount of credit does not relate to goods manufactured and cleared under such notificat

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July, 2017 (i.e. in GST regime). Will such a person get full credit of CENVAT in GST regime? Ans. Yes, he will be entitled to credit in 2017-18 provided such a credit was admissible as CENVAT credit in the existing law and is also admissible as credit in CGST – section 140(2) of the CGST Act. Q 4. VAT credit was not available on items 'X' & 'Y' as capital goods in the existing law (Central Excise). Since they are covered in GST, can the registered taxable person claim it now? Ans. He will be entitled to credit only when ITC on such goods are admissible under the existing law and is also admissible in GST. Since credit is not available under the existing law on such goods, the said person cannot claim it in GST – proviso to section 140(2) of the SGST Act. Q 5. Assuming the registered person has wrongly enjoyed the credit (Refer to Q4) under the existing law, will the recovery be done under the GST Law or the existing law? Ans. The recovery relating to ITC wrongfully

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0/- in his last VAT return for the period immediately preceding the appointed day. Under GST he opts for composition scheme. Can he carry forward the aforesaid excess ITC to GST? Ans. The registered person will not be able to carry forward the excess ITC of VAT to GST if he opts for composition scheme – Section 140(1). Q 9. Sales return under CST (i.e. Central Sales Tax Act) is allowable as deduction from the turnover within six months? If, say, goods are returned in GST regime by a buyer within six months from appointed day, will it become taxable in GST? Ans. Where tax has been paid under the existing law [CST, in this case] on any goods at the time of sale, not being earlier than six months prior to the appointed day, and such goods are returned by the buyer after the appointed day, the sales return will be considered as a supply of the said buyer in GST and tax has to be paid on such supply, if, – (i) the goods are taxable under the GST Law; and (ii) the buyer is registered under t

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ls of inputs held in stock by the job worker on the appointed day in the prescribed form. The relevant sections are 141(1), 141(2) & 141 (4). However, if the said inputs/semi- finished goods are not returned within six months (or within the extended period of maximum two months), the input tax credit availed is liable to be recovered. Q 11. What happens if the job worker does not return the goods within the specified time? Ans. Input tax credit availed by manufacturer will be payable by said manufacturer on the said goods if they are not returned to the place of business of the manufacturer within six months (or within the extended period of maximum two months) from the appointed day – Q 12. Can a manufacturer transfer have finished goods sent for testing purpose to the premises of any other taxable person? Ans. Yes, a manufacturer can transfer finished goods sent for testing purpose to the premise of any other registered person on payment of tax in India or without payment of tax

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e not returned to the manufacturer within six months (or within the extended period of maximum two months) from the appointed day, the input tax credit availed by the manufacturer will liable to be recovered if the aforesaid goods are not returned within six months from the appointed day. – Section 141(3) Q 15. Is extension of two months as discussed in section 141 automatic? Ans. No, it is not automatic. It may be extended by the Commissioner on sufficient cause being shown. Q 16. What is the time limit for issue of debit/credit note(s) for revision of prices? Ans. The taxable person may issue the debit/credit note(s) or a supplementary invoice within 30 days of the price revision. In case where the price is revised downwards the taxable person will be allowed to reduce his tax liability only if the recipient of the invoice or credit note has reduced his ITC corresponding to such reduction of tax liability-section 142(2). Q 17. What will be the fate of pending refund of tax/interest u

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ision goes against the assessee? Ans. The refund will be made in accordance with the provisions of the existing law only. In case any recovery is to be made then, unless recovered under existing law, it will be recovered as an arrear of tax under GST – sections 142(6) & 142(7) Q 20. How shall the refund arising from revision of return(s) furnished under the existing law be dealt in GST? Ans. Any amount found to be refundable as a consequence of revision of any return under the existing law after the appointed day will be refunded in cash in accordance with the provisions of the existing law – section 142(9)(b). Q 21. If any goods or services are supplied in GST, in pursuance of contract entered under existing law, which tax will be payable? Ans. GST will be payable on such supplies- section 142(10) of the CGST Act. Q 22. Tax on a particular supply of goods/services is leviable under the existing law. Will GST be also payable if the actual supply is made in GST regime? Ans. No tax w

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GSTN and Frontend Business Process on GST Portal

GST – GST FAQ 2nd Edition – June 2017 as Updated as on 1.1.2018 – 23 – Q 1. What is GSTN? Ans. Goods and Services Tax Network (GSTN) is a not-for-profit, non-government company promoted jointly by the Central and State Governments, which will provide shared IT infrastructure and services to both central and state governments including tax payers and other stakeholders. The Frontend services of Registration, Returns, Payments, etc. to all taxpayers will be provided by GSTN. It will be the interface between the government and the taxpayers. Q 2. What was need to create GSTN? Ans. The GST System Project is a unique and complex IT initiative. It is unique as it seeks, for the first time to establish a uniform interface for the tax payer and a common and shared IT infrastructure between the Centre and States. Currently, the Centre and State indirect tax administrations work under different laws, regulations, procedures and formats and consequently the IT systems work as independent sites.

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oved creation of an Empowered Group on IT Infrastructure for GST (referred to as EG) under the chairmanship of Dr. Nandan Nilekani with Additional Secretary (Rev), Member (B&C) CBEC, DG (Systems), CBEC, FA Ministry of Finance, Member Secretary EC and five state commissioners of Trade Taxes (Maharashtra, Assam, Karnataka, West Bengal and Gujarat) as members. The Group was mandated to suggest, inter alia, the modalities for setting up a National Information Utility (NIU/ SPV) for implementing the Common Portal to be called GST Network (GSTN) and recommend the structure and terms of reference for the NIU/ SPV, detailed implementation strategy and the road map for its creation in addition to other items like training, outreach etc. In March 2010, TAGUP constituted by the Ministry of Finance had recommended that National Information Utilities should be set up as private companies with a public purpose for implementation of large and complex Government IT projects including GST. Mandate

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ic control of the Government over the SPV should be ensured through measures such as composition of the Board, mechanisms of Special Resolution and Shareholders Agreement, induction of Government officers on deputation, and agreements between GSTN SPV and Governments. Also, the shareholding pattern would ensure that the Centre individually and States collectively are the largest stakeholders at 24.5% each. In combination, the Government shareholding at 49% would far exceed that of any single private institution. EG also brought out the need to have technology specification to run this company so that there is 100 percent matching of returns. The business knowledge resides with the officials of Government of India and States. However, professionals with sophisticated technology knowledge will be required to run this company independently, similar to NSDL which is working professionally and independently. EG also recommended a non-government company as that will have operational freedom.

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measures such as composition of the Board, mechanisms of Special Resolution and Shareholders Agreement, induction of Government officers on deputation, and agreements between GSTN SPV and Governments. iii. The Board of Directors of GSTN SPV would comprise 14 Directors with 3 Directors from the Centre, 3 from the States, a Chairman of the Board of Directors appointed through a joint approval mechanism of Centre and States, 3 Directors from private equity stake holders, 3 independent Directors who would be persons of eminence and a CEO of the GSTN SPV selected through an open selection process. iv. Relaxation in relevant rules to enable deputation of Government officers to the GSTN SPV for exercise of strategic control and for bringing in necessary domain expertise. v. GSTN SPV would have a self- sustaining revenue model, where it would be able to levy user charges on the tax payers and the tax authorities availing services. vi. GSTN SPV to be the exclusive national agency responsible f

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ment after due deliberations over a long period of time. (b) Revenue Model: An amount of 315 Cr. was approved by the Govt. of India as Grants-in-Aid for initial setting up of the GSTN-SPV in 2013. During the period 31.03.2013 to 31.03.2016, an amount of ₹ 143.96 Crores was released as Grant-In-Aid to GSTN out of ₹ 315 Crores approved by Govt of India. Out of the grant-in-aid received, only Rs. 62.11 Cr was spent during this period in setting of the Company and making it functional. The balance grant was returned to Govt. of India. During FY 2016-17, GSTN has got loan sanctioned from a commercial bank to meet expenditure over setting up the IT Platform to provide services to the Center and States through GST portal and developing the backend for 27 States and Union Territories. The Revenue model for GSTN has been approved by the Empowered Committee of State Finance Ministers under which user charges will be paid by the Centre and States/UTs equally on behalf of taxpayers and

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ence; (i) Maintenance of interfaces between the Common GST Portal and tax administration systems; (j) Provide training to stakeholders; (k) Provide Analytics and Business Intelligence to tax authorities; and (l) Carry out research and study best practices. Q 6. What is the interface system between GSTN and the States/CBEC? Ans. In GST regime, while taxpayer facing core services of applying for registration, uploading of invoices, filing of return, making tax payments shall be hosted by GST System, all the statutory functions (such as approval of registration, assessment of return, conducting investigation and audit etc.) shall be conducted by the tax authorities of States and Central governments. Thus, the frontend (GST Portal services) shall be provided by GSTN and the backend modules shall be developed by states and Central Government themselves. However, 27 states (termed as Model-2 states) have asked GSTN to develop their backend modules also. The CBEC and rest of the 9 states (Mod

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) for the design, development and deployment of GST system, including all application software, tools and Infrastructure and for operating & maintaining the system for a period of 5 years from the Go-Live date. Q 9. What are the basic features of GST common portal? Ans. The GST portal (www.gst.gov.in ) is accessible over Internet (by Taxpayers and their CAs/Tax Advocates etc.) and Intranet by Tax Officials etc. The portal is going to be one single common portal for all GST related services e.g.- i. Tax payer registration (New, surrender, cancelation, amendment etc.); ii. Invoice upload, auto-drafting of Purchase register of buyer, GST Returns filing on stipulated dates for each type of return (GSTR [1, 2, 3, 5, 9.etc]; iii. Tax payment by creation of Challan and integration with agency Banks; iv. ITC and Cash Ledger and Liability Register; v. MIS reporting for tax payers, tax officials and other stakeholders; vi. BI/Analytics for Tax officials. Q 10. What is the concept of GST Eco-

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tomated way to interact with GST system as it may be practically impossible for them to upload large number of invoices through a web portal. So an eco- system is required, which can help such taxpayers in GST compliance. As Tax payer convenience will be the key to success of GST regime, this eco-system will also provide Tax payer options of using third party applications, which can provide different kind of interfaces on desktop/mobile for them to be GST compliant. All above reasons require an eco-system of third party service providers, who have access to GST System and capability to develop such applications. These service providers have been given a generic name, GST Suvidha Providers or GSP. Q 12. What will be the role of GST Suvidha Providers (GSP)? Ans. GSP will be developing applications having features like return filing, reconciliation of purchase register data with auto populated data for acceptance/rejection/Modification, dashboards for taxpayers for quick monitoring of GST

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T compliant format. 2. Reconciliation of auto populated data from GST portal with their purchase register data, where purchase register data can be on excel, csv or in any proprietary database and uploaded data from GST format could be in json/csv. 3. Organization having various branches will need a way to upload branch wise invoices, as GST System will only provide one user-id/password for GST system access. An application having role based access and different view for different branches will be needed. 4. A company registered in multiple States may require unified view of all branches in one screen, 5. GST professionals will need some specific applications to manage and undertake GST compliance activities for their client Tax payers from one dashboard, etc. Above are just a few illustrations. There will be many more requirements of different sets of Tax payers. These requirements of taxpayers can be met by GSPs. Q 14. What are the functions which a taxpayer will perform at the GST C

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vt in respect of the GST system being developed by GSTN? Ans. The officers will use information/ application submitted by taxpayer on GST Portal for following statutory functions: Approval/rejection for enrollment/registration of taxpayers; Tax administration (Assessment / Audit /Refund / Appeal/ Investigation etc.); Business Analytics, MIS and other statutory functions. Q 16. Will GSTN generate a unique identification for each invoice line in GSTN system? Ans. No, GSTN will not generate any new identification. The combination of Supplier s GSTIN, Invoice no and Financial year will make each Invoice unique. Q 17. Can invoice data be uploaded on day to day basis? Ans. Yes, GST Portal will have functionality for taxpayers to upload invoice data on any time basis. Early upload of invoices by supplier taxpayer will help receiver taxpayer in early reconciliation of data in Invoices as well as help supplier taxpayer in avoiding last minute rush of uploading returns on the last day. Q 18. Wil

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parate user ID and Password to GST Practitioner to enable them to work on behalf of their clients without asking for their user ID and passwords. They will be able to do all the work on behalf of taxpayers as allowed under GST Law. Q 21. Will tax payer be able to change the GST Practitioner once chosen in above mentioned facility? Ans. Yes, a taxpayer may choose a different GST Practitioner by simply unselecting the previous one and then choosing a new GST Practitioner on the GST portal. Q 22. Will existing taxpayers under Central Excise or Service Tax or State VAT have to apply for fresh registration under GST? Ans. No, the existing taxpayers under taxes which are to be subsumed under GST and whose PAN have been validated from CBDT database will not be required to apply afresh. They will be issued provisional GSTIN by GST portal, which will be valid for six months. Such taxpayers will be required to provide relevant data as per GST enrollment form online on GST Portal. On completion o

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the website of all tax authorities. Apart from CBT s, Various User Manuals, FAQ s etc., will also be placed on GST Portal for education of the taxpayers. Apart from it, a helpdesk has been set up for the taxpayers for logging of their tickets via mail (helpdesk@gst.gov.in) or phone (0124-4688999). CBT, FAQ and User Manual for enrolment process are available at https://www.gst.gov.in/help. Q 24. Will the return and registration data furnished by the taxpayers on the GST Common Portal will remain Confidential? Ans. Yes, all steps are being taken by GSTN to ensure the confidentiality of personal and business information furnished by the taxpayers on GST Common Portal. This will be done by ensuring Role Based Access Control (RBAC) and encryption of critical data of taxpayers both during transit and in storage. Only the authorized tax authorities will be able to see and read the data. Q 25. What are the security measures being taken by GSTN to ensure security of the GST system? Ans. GST Sy

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Place of Supply of Goods and Service

GST – GST FAQ 2nd Edition – June 2017 as Updated as on 1.1.2018 – 22 – Q 1. What is the need for the Place of Supply of Goods and Services under GST? Ans. The basic principle of GST is that it should effectively tax the consumption of such supplies at the destination thereof or as the case may at the point of consumption. So place of supply provision determines the place i.e. taxable jurisdiction where the tax should reach. The place of supply determines whether a transaction is intra-state or inter-state. In other words, the place of Supply of Goods or services is required to determine whether a supply is subject to SGST plus CGST in a given State or union territory or else would attract IGST if it is an inter-state supply. Q 2. Why are place of supply provisions different in respect of goods and services? Ans. Goods being tangible do not pose any significant problems for determination of their place of consumption. Services being intangible pose problems w.r.t determination of place

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a bridge on a river which originate in one state and end in the other state. Similarly, a copy right for distribution and exhibition of film could be assigned for many states in single transaction or an advertisement or a programme is broadcasted across the country at the same time. An airline may issue seasonal tickets, containing say 10 leafs which could be used for travel between any two locations in the country. The card issued by Delhi metro could be used by a person located in Noida, or Delhi or Faridabad, without the Delhi metro being able to distinguish the location or journeys at the time of receipt of payment; (v) Services are continuously evolving and would thus continue to pose newer challenges. For example, 15-20 years back no one could have thought of DTH, online information, online banking, online booking of tickets, internet, mobile telecommunication etc. Q 3. What proxies or assumptions in a transaction can be used to determine the place of supply? Ans. The various el

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e the input tax credit for payment of future taxes. For B2B transactions the location of recipient takes care in almost all situations as further credit is to be taken by recipient. The recipient usually further supplies to another customer. The supply is consumed only when a B2B transaction is further converted into B2C transaction. In respect of B2C transactions, the supply is finally consumed and the taxes paid actually come to the government. Q 5. What would be the place of supply where goods are removed? Ans. The place of supply of goods shall be the location of the goods at the time at which the movement of goods terminates for delivery to the recipient. (Section 10 of IGST Act) Q 6. What will be the place of supply if the goods are delivered by the supplier to a person on the direction of a third person? Ans. It would be deemed that the third person has received the goods and the place of supply of such goods shall be the principal place of business of such person. (Section 10 o

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spect of unregistered recipients, the usual place of supply is location of recipient. However, in many cases, the address of recipient is not available, in such cases, location of the supplier of services is taken as proxy for place of supply. Q 10. The place of supply in relation to immovable property is the location of immovable property. Suppose a road is constructed from Delhi to Mumbai covering multiple states. What will be the place of supply? Ans. Where the immovable property is located in more than one State, the supply of service shall be treated as made in each of the States in proportion to the value for services separately collected or determined, in terms of the contract or agreement entered into in this regard or, in the absence of such contract or agreement, on such other reasonable basis as may be prescribed in this behalf. (The Explanation clause to section 12(3) of the IGST Act, for domestic supplies) Q 11. What would be the place of supply of services provided for or

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portation (section 12 of the IGST Act. For international supplies: The place of supply of transport services, other than the courier services, shall be the destination of goods. For courier, the place of supply of services is where goods are handed over to courier. However, if the courier services are performed even partially in India, the place of supply shall be deemed as India (section 13(3), 13(6) and 13(9) of the IGST Act). Q 13. What will be the place of supply of passenger transportation service, if a person travels from Mumbai to Delhi and back to Mumbai? Ans. If the person is registered, the place of supply shall be the location of recipient. If the person is not registered, the place of supply for the forward journey from Mumbai to Delhi shall be Mumbai, the place where he embarks. However, for the return journey, the place of supply shall be Delhi as the return journey has to be treated as separate journey. (The Explanation clause to section 12(9) of the IGST Act) Q 14. Supp

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n postpaid or prepaid basis. In case of postpaid connections, the place of supply shall be the location of billing address of the recipient of service. In case of pre-paid connections, the place of supply shall be the place where payment for such connection is received or such pre-paid vouchers are sold. However, if the recharge is done through internet/e-payment, the location of recipient of service on record shall be the taken as the place of service. For international supplies: The place of supply of telecom services is the location of the recipient of service. Q 16. A person in Goa buys shares from a broker in Delhi on NSE (in Mumbai). What will be the place of supply? Ans. The place of supply shall be the location of the recipient of services on the records of the supplier of services. So Goa shall be the place of supply. Q 17. A person from Mumbai goes to Kullu-Manali and takes some services from ICICI Bank in Manali. What will be the place of supply? Ans. If the service is not l

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Overview of the IGST Act

GST – GST FAQ 2nd Edition – June 2017 as Updated as on 1.1.2018 – 21 – Q 1. What is IGST? Ans. Integrated Goods and Services Tax (IGST) means tax levied under the IGST Act on the supply of any goods and/ or services in the course of inter-State trade or commerce. Q 2. What are inter-state supplies? Ans. A supply of goods and/or services in the course of inter-State trade or commerce means any supply where the location of the supplier and the place of supply are in different States, two different union territory or in a state and union territory Further import of goods and services, supplies to SEZ units or developer, or any supply that is not an intra state supply. (Section 7 of the IGST Act). Q 3. How will the Inter-State supplies of Goods and Services be taxed under GST? Ans. IGST shall be levied and collected by Centre on inter-state supplies. IGST would be broadly CGST plus SGST and shall be levied on all inter-State taxable supplies of goods and services. The inter-State seller w

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ply does not involve movement of goods, the place of supply shall be the location of such goods at the time of delivery to the recipient. In the case of goods assembled or installed at site, the place of supply shall be the place of such installation or assembly. Finally, where the goods are supplied on board a conveyance, the place of supply shall be the location at which such goods are taken on board. The law also provides for determination of place of supply of service where both supplier and recipient are located in India (domestic supplies) or where supplier or recipient is located outside India (international supplies). This is discussed in details in the next Chapter. It also provides for certain other specific provisions like payment of tax by online information and database access service provider located outside India to an unregistered person in India, upon taking registration in India, under the IGST Act, following a simplified provision (section 14 of the IGST Act), Q 5. W

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. Full and complete set-off will be available as ITC of the IGST paid on import on goods and services. Exports of goods and services will be zero rated. The exporter has the option either to export under bond without payment of duty and claim refund of ITC or pay IGST at the time of export and claim refund of IGST. The IGST on imports is leviable under the provisions of the Customs Tariff Act and shall be levied at the time of imports along with the levy of the Customs Act (Section 5 of the IGST Act) Q 7. How will the IGST be paid? Ans. The IGST payment can be done utilizing ITC or by cash. However, the use of ITC for payment of IGST will be done using the following hierarchy, – First available ITC of IGST shall be used for payment of IGST; Once ITC of IGST is exhausted, the ITC of CGST shall be used for payment of IGST; If both ITC of IGST and ITC of CGST are exhausted, then only the dealer would be permitted to use ITC of SGST for payment of IGST. Remaining IGST liability, if any, sh

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Offences, Penalties, Prosecution and Compounding

GST – GST FAQ 2nd Edition – June 2017 as Updated as on 1.1.2018 – 20 – Q 1. What are the prescribed offences under CGST/SGST Act? Ans. The CGST/SGST Act codifies the offences and penalties in Chapter XVI. The Act lists 21 offences in section 122, apart from the penalty prescribed under section 10 for availing compounding by a taxable person who is not eligible for it. The said offences are as follows: – 1) Making a supply without invoice or with false/ incorrect invoice; 2) Issuing an invoice without making supply; 3) Not paying tax collected for a period exceeding three months; 4) Not paying tax collected in contravention of the CGST/SGST Act for a period exceeding 3 months; 5) Non deduction or lower deduction of tax deducted at source or not depositing tax deducted at source under section 51; 6) Non collection or lower collection of or non- payment of tax collectible at source under section 52; 7) Availing/utilizing input tax credit without actual receipt of goods and/or services; 8

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ting/storing any goods liable to confiscation; 19) Issuing invoice or document using GSTIN of another person; 20) Tampering/destroying any material evidence; 21) Disposing of /tampering with goods detained/ seized/attached under the Act. Q 2. What is meant by the term penalty? Ans. The word penalty has not been defined in the CGST/SGST Act but judicial pronouncements and principles of jurisprudence have laid down the nature of a penalty as: a temporary punishment or a sum of money imposed by statute, to be paid as punishment for the commission of a certain offence; a punishment imposed by law or contract for doing or failing to do something that was the duty of a party to do. Q 3. What are the general disciplines to be followed while imposing penalties? Ans. The levy of penalty is subject to a certain disciplinary regime which is based on jurisprudence, principles of natural justice and principles governing international trade and agreements. Such general discipline is enshrined in sec

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pparent on record) that has been made without fraudulent intent or gross negligence. Further, wherever penalty of a fixed amount or a fixed percentage has been provided in the CGST/SGST Act, the same shall apply. Q 4. What is the quantum of penalty provided for in the CGST /SGST Act? Ans. Section 122(1) provides that any taxable person who has committed any of the offences mentioned in section 122 shall be punished with a penalty that shall be higher of the following amounts: The amount of tax evaded, fraudulently obtained as refund, availed as credit, or not deducted or collected or short deducted or short collected, or A sum of ₹ 10,000/-. Further Section 122(2) provides that any registered person who has not paid tax or makes a short payment of taxon supplies shall be a liable to penalty which will be the higher of: 10% of the tax not paid or short paid, or ₹ 10,000/- Q 5. Is any penalty prescribed for any person other than the taxable person? Ans. Yes. Section 122(3) pr

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on transports any goods or stores any such goods while in transit without the documents prescribed under the Act (i.e. invoice and a declaration) or supplies or stores any goods that have not been recorded in the books or accounts maintained by him, then such goods shall be liable for detention along with any vehicle on which they are being transported. Where owner comes forward: – Such goods shall be released on payment of the applicable tax and penalty equal to 100% tax or upon furnishing of security equivalent to the said amount. In case of exempted goods, penalty is 2% of value of goods or ₹ 25,000/- whichever is lesser. Where owner does not come forward: – Such goods shall be released on payment of the applicable tax and penalty equal to 50% of value of goods or upon furnishing of security equivalent to the said amount. In case of exempted goods, penalty is 5% of value of goods or ₹ 25,000/- whichever is lesser. Q 7. What is the penalty prescribed for a person who opts

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GST Act? Ans. Under Section 130 of the CGST Act, goods shall be liable to confiscation if any person: supplies or receives any goods in contravention of any provision of this Act and such contravention results in evasion of tax payable under the Act, or does not account for any goods in the manner required under the Act, or supplies goods that are liable to tax under the Act without applying for registration, or uses any conveyance as a means of transport for carriage of goods in contravention of the provisions of CGST/SGST Act (unless used without knowledge of owner) contravenes any provision of the Act/Rules with the intention of evading payment of tax. Q 10. What happens to the goods upon confiscation of goods by the proper officer? Ans. Upon confiscation, the title in the confiscated goods shall vest in the Government and every Police officer to whom the proper officer makes a request in this behalf, shall assist in taking possession of the goods. Q 11. After confiscation, is it re

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itution or commencement of legal proceeding; the process of exhibiting formal charges against the offender. Section 198 of the Criminal Procedure Code defines prosecution as the institution and carrying on of the legal proceedings against a person. Q 14. Which are the offences which warrant prosecution under the CGST/SGST Act? Ans. Section 132 of the CGST/SGST Act codifies the major offences under the Act which warrant institution of criminal proceedings and prosecution. 12 such major offences have been listed as follows: a) Making a supply without issuing an invoice or upon issuance of a false/incorrect invoice; b) Issuing an invoice without making supply; c) Not paying any amount collected as tax for a period exceeding 3 months; d) Availing or utilizing credit of input tax without actual receipt of goods and/or services; e) Obtaining any fraudulent refund) f) evades tax, fraudulently avails ITC or obtains refund by an offence not covered under clause (a) to (e); g) Furnishing false i

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rore and ₹ 5 crore 3 years and fine Tax evaded between ₹ 1 crore and ₹ 2 crore 1 years and fine False records Obstructing officer Tamper records 6 months Q 15. What are cognizable and non-cognizable offences under CGST/SGST Act? Ans. In terms of Section 132(4) and 132(5) of CGST/SGST Act all offences where the evasion of tax is less than ₹ 5 crores shall be non-cognizable and bailable, all offences where the evasion of tax exceeds ₹ 5 crores shall be cognizable and non- bailable. Q 16. Is prior sanction of competent authority mandatory for initiating prosecution? Ans. Yes. No person shall be prosecuted for any offence without the prior sanction of the designated authority. Q 17. Is mensrea or culpable mental state necessary for prosecution under CGST/SGST Act? Ans. Yes. However, Section 135 presumes the existence of a state of mind (i.e. culpable mental state or mensrea) required to commit an offence if it cannot be committed without such a state of mind Q

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deemed to be guilty of the said offence and liable to be proceeded against and punished accordingly. Q 20. What is meant by compounding of offences? Ans. Section 320 of the Code of Criminal Procedure defines compounding as to forbear from prosecution for consideration or any private motive. Q 21. Can offences under CGST/SGST Act be compounded? Ans. Yes. As per section 138 of the CGST/SGST Act, any offence, other than the following, may upon payment of the prescribed (compounding) amount be compounded and such compounding is permissible either before or after the institution of prosecution: Offences numbered 1 to 6 of the 12 major offences (outlined in Q. 16 above), if the person charged with the offence had compounded earlier in respect of any of the said offences; Aiding/abetting offences numbered 1 to 6 of the 12 major offences, if the person charged with the offence had compounded earlier in respect of any of the said offences; Any offence (other than the above offences) under any S

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Inspection, Search, Seizure and Arrest

GST – GST FAQ 2nd Edition – June 2017 as Updated as on 1.1.2018 – 19 – Q 1. What is the meaning of the term Search ? Ans. As per law dictionary and as noted in different judicial pronouncements, the term search , in simple language, denotes an action of a government machinery to go, look through or examine carefully a place, area, person, object etc. in order to find something concealed or for the purpose of discovering evidence of a crime. The search of a person or vehicle or premises etc. can only be done under proper and valid authority of law. Q 2. What is the meaning of the term Inspection ? Ans. Inspection is a new provision under the CGST/SGST Act. It is a softer provision than search to enable officers to access any place of business of a taxable person and also any place of business of a person engaged in transporting goods or who is an owner or an operator of a warehouse or godown. Q 3. Who can order for carrying out Inspection and under what circumstances? Ans. As per Secti

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rson engaged in the business of transporting goods whether or not he is a registered taxable person; iii. any place of business of an owner or an operator of a warehouse or godown. Q 5. Who can order for Search and Seizure under the provisions of CGST Act? Ans. An officer of the rank of Joint Commissioner or above can authorize an officer in writing to carry out search and seize goods, documents, books or things. Such authorization can be given only where the Joint Commissioner has reasons to believe that any goods liable to confiscation or any documents or books or things relevant for any proceedings are hidden in any place. Q 6. What is meant by reasons to believe ? Ans. Reason to believe is to have knowledge of facts which, although not amounting to direct knowledge, would cause a reasonable person, knowing the same facts, to reasonably conclude the same thing. As per Section 26 of the IPC, 1860, A person is said to have reason to believe a thing, if he has sufficient cause to belie

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competent authority to issue search warrant is an officer of the rank of Joint Commissioner or above. A search warrant must indicate the existence of a reasonable belief leading to the search. Search Warrant should contain the following details: i. the violation under the Act, ii. the premise to be searched, iii. the name and designation of the person authorized for search, iv. the name of the issuing officer with full designation along with his round seal, v. date and place of issue, vi. serial number of the search warrant, vii. period of validity i.e. a day or two days etc. Q 9. When do goods become liable to confiscation under the provisions of CGST/SGST Act? Ans. As per section 130 of SGST/SGST Act, goods become liable to confiscation when any person does the following: (i) supplies or receives any goods in contravention of any of the provisions of this Act or rules made thereunder leading to evasion of tax; (ii) does not account for any goods on which he is liable to pay tax under

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ns. Section 67(10) of CGST/SGST Act prescribes that searches must be carried out in accordance with the provisions of Code of Criminal Procedure, 1973. Section 100 of the Code of Criminal Procedure describes the procedure for search. Q 12. What are the basic requirements to be observed during Search operations? Ans. The following principles should be observed during Search: No search of premises should be carried out without a valid search warrant issued by the proper officer. There should invariably be a lady officer accompanying the search team to residence. The officers before starting the search should disclose their identity by showing their identity cards to the person in-charge of the premises. The search warrant should be executed before the start of the search by showing the same to the person in-charge of the premises and his signature should be taken on the body of the search warrant in token of having seen the same. The signatures of at least two witnesses should also be ta

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signed by the witnesses, the in-charge/ owner of the premises before whom the search is conducted and also by the officer(s) duly authorized for conducting the search. After the search is over, the search warrant duly executed should be returned in original to the issuing officer with a report regarding the outcome of the search. The names of the officers who participated in the search may also be written on the reverse of the search warrant. The issuing authority of search warrant should maintain register of records of search warrant issued and returned and used search warrants should be kept in records. A copy of the Panchnama / Mahazar along with its annexure should be given to the person in- charge/owner of the premises being searched under acknowledgement. Q 13. Can a CGST/SGST officer access business premises under any other circumstances? Ans. Yes. Access can also be obtained in terms of Section 65 of CGST/SGST Act. This provision of law is meant to allow an audit party of CGST/

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wishes of the owner of the property or who has the possession and who was unwilling to part with the possession. Q 15. Does GST Act(s) have any power of detention of goods and conveyances? Ans. Yes, under Section 129 of CGST/SGST Act, an officer has power to detain goods along with the conveyance (like a truck or other types of vehicle) transporting the goods. This can be done for such goods which are being transported or are stored in transit in violation of the provisions of CGST/SGST Act. Goods which are stored or are kept in stock but not accounted for can also be detained. Such goods and conveyance shall be released after payment of applicable tax or upon furnishing security of equivalent amount. Q 16. What is the distinction in law between Seizure and Detention ? Ans. Denial of access to the owner of the property or the person who possesses the property at a particular point of time by a legal order/notice is called detention. Seizure is taking over of actual possession of the g

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e seizing officer; v. Certain categories of goods to be specified under CGST Rules (such as perishable, hazardous etc.) can be disposed of immediately after seizure; vi. Provisions of Code of Criminal Procedure 1973 relating to search and seizure shall apply. However, one important modification is in relation to sub-section (5) of section 165 of Code of Criminal Procedure – instead of sending copies of any record made in course of search to the nearest Magistrate empowered to take cognizance of the offence, it has to be sent to the Principal Commissioner/ Commissioner of CGST/ Commissioner of SGST. Q 18. Is there any special document required to be carried during transport of taxable goods? Ans. Under section 68 of CGST /SGST Act, a person in charge of a conveyance carrying any consignment of goods of value exceeding a specified amount may be required to carry a prescribed document as prescribed in the E way Bill Rules. Q 19. What is meant by the term arrest ? Ans. The term arrest has

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is placed under arrest. These are: a. If a person is arrested for a cognizable offence, he must be informed in writing of the grounds of arrest and he must be produced before a magistrate within 24 hours of his arrest; i. If a person is arrested for a non-cognizable and bailable offence, the Deputy/ Assistant Commissioner of CGST/SGST can release him on bail and he will be subject to the same provisions as an officer in-charge of a police station under section 436 of the Code of Criminal Procedure, 1973; ii. All arrest must be in accordance with the provisions of the Code of Criminal Procedure, 1973 relating to arrest. Q 22. What are the precautions to be taken during arrest? Ans. The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to arrest and the procedure thereof must be adhered to. It is therefore necessary that all field officers of CGST/SGST be fully familiar with the provisions of the Code of Criminal Procedure, 1973. One important provision to be taken

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th their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. ii. The police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest. iii. A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. iv. The

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xamination by the trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well. viii. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record. ix. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. x. A police control room should be provided at all district and State headquarters where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. Q 23. What are the broad guidelines for arrest followed in CBEC? Ans. Decision to arrest needs to be taken

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ng one crore rupees. Q 24. What is a cognizable offence? Ans. Generally, as per Cr. PC, cognizable offence means serious category of offences in respect of which a police officer has the authority to make an arrest without a warrant and to start an investigation with or without the permission of a court. However, GST being a special legislation, only the officers, duly empowered under the Act can act as above. Q 25. What is a non-cognizable offence? Ans. Non-cognizable offence means relatively less serious offences in respect of which a police officer does not have the authority to make an arrest without a warrant and an investigation cannot be initiated without a court order, except as may be authorized under special legislation. Q 26. What are cognizable and non-cognizable offences under CGST Act? Ans. In section 132 of CGST Act, it is provided that the offences relating to taxable goods and /or services where the amount of tax evaded or the amount of input tax credit wrongly availed

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er who has issued the summon upon any subject which is the subject matter of examination and to produce such documents and other things as may be required. Q 29. What can be the consequences of non- appearance to summons? Ans. The proceeding before the official who has issued summons is deemed to be a judicial proceeding. If a person does not appear on the date when summoned without any reasonable justification, he can be prosecuted under section 174 of the Indian Penal Code (IPC). If he absconds to avoid service of summons, he can be prosecuted under section 172 of the IPC and in case he does not produce the documents or electronic records required to be produced, he can be prosecuted under section 175 of the IPC. In case he gives false evidence, he can be prosecuted under section 193 of the IPC. In addition, if a person does not appear before a CGST/ SGST officer who has issued the summons, he is liable to a penalty up to ₹ 25,000/- under section 122(3) (d) of CGST/SGST Act. Q

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e reduced to writing and intimated to the officer according such permission at the earliest opportunity; v. in all cases, where summons are issued, the officer issuing summons should submit a report or should record a brief of the proceedings in the case file and submit the same to the officer who had authorized the issuance of summons; vi. senior management officials such as CEO, CFO, General Managers of a large company or a Public Sector Undertaking should not generally be issued summons at the first instance. They should be summoned only when there are indications in the investigation of their involvement in the decision making process which led to loss of revenue. Q 31. What are the precautions to be observed while issuing summons? Ans. The following precautions should generally be observed when summoning a person: – (i) A summon should not be issued for appearance where it is not justified. The power to summon can be exercised only when there is an inquiry being undertaken and the

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Classification of goods – P.P. Bags which are made from strips having width of less than 5mm – to be classifiable under Chapter 39 of the GST tariff as articles of Plastic.

GST – Classification of goods – P.P. Bags which are made from strips having width of less than 5mm – to be classifiable under Chapter 39 of the GST tariff as articles of Plastic. – TMI Updates – Highlights

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Levy of GST – the component of interest and delayed payment charges are obviously having a direct relation with the value of supply to which such interest/delayed charges relate. These are in fact components of the value of supply and do not hav

GST – Levy of GST – the component of interest and delayed payment charges are obviously having a direct relation with the value of supply to which such interest/delayed charges relate. These are in fa

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Distribution and supply of electricity – Government Entity – composite supply – benefit of exemption – applicability of Sr.No.3A will be supply specific and not supplier or recipient specific. Thus it is not possible to give nay ruling about app

GST – Distribution and supply of electricity – Government Entity – composite supply – benefit of exemption – applicability of Sr.No.3A will be supply specific and not supplier or recipient specific. T

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Operational Energy Group India Private Ltd. Versus Commissioner of GST & Central Excise, Chennai South Commissionerate

2019 (1) TMI 1236 – CESTAT CHENNAI – TMI – Classification of services – Management, Maintenance or Repair service or otherwise? – appellants had entered into an agreement with various clients like M/s.Thermax India Ltd., Tidel Park, JCT, Tamil Nadu Petroleum Ltd. etc for operation and maintenance of power plants – Department was of the view that charges collected on operation of the plants have got nexus with the Management, Maintenance or Repair of Power Plants and above charges are liable to service tax w.e.f. 16.06.2005 under MMRS – Held that:- The issue as to whether activity of production of electricity in power plant would amount to management of immovable property or otherwise, has been analyzed and discussed by this Bench in the case of Shapoorji Pallonji Infrastructure [2017 (6) TMI 225 – CESTAT CHENNAI] and held in favor of assessee. It was held in the case that management of immovable property does not include operation activities. In addition, it cannot be said that the ap

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el Park, JCT, Tamil Nadu Petroleum Ltd. etc for operation and maintenance of power plants. In terms of the agreements with their clients, appellants were responsible inter alia, for monitoring plant equipment performance, operation planning, coordinating with the State Electricity Board, breakdown maintenance and repairs of all transformers, switchgears, breakages, motor control centres, etc. that may be used in the operation of the power plant in an effective and timely manner. The aforesaid activities are performed by appellants with their group of experienced and office and management personnel. In consideration of rendering the above, appellant collected maintenance charge and operation charges from their clients. Department was of the view that charges collected on operation of the plants as mentioned above, have got nexus with the Management, Maintenance or Repair of Power Plants and above charges are liable to service tax w.e.f. 16.06.2005 under MMRS under the category of Manage

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e of Shapporji Pallonji Infrastructure Capital Co. Ltd. Vs CST Chennai in favour of appellant. He prays that following the ratio of the decision of CESTAT Chennai appeal may be allowed. 3. On the other hand, Ld. A.R supports the impugned order. 4. After hearing both sides, we find that Ld. Advocate is correct in his assertion. The issue as to whether activity of production of electricity in power plant would amount to management of immovable property or otherwise, has been analyzed and discussed by this Bench in the case of Shapoorji Pallonji Infrastructure (supra) and held in favour of assessee. The relevant portion of the order is reproduced below : 10.1 The learned counsel for the appellant has countered this allegation stating that the activity would not fall under management of immovable property . That it will get covered under the definition of Business Auxiliary Service; the dominant activity carried out in the power plant being generation of electricity and maintenance of the

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or the sole purpose of management of the immovable property. In the present case, the sole purpose is not management of immovable property. Further, the management, if any, of the power plant is done by the appellants and is only incidental to the activity of generation of electricity. The activity carried out in the power plant is not solely management of power plant, but operation of the same. The word operation is not used in the definition of Maintenance and repair services which is relied by department as amended with effect from 16-6-2005. The said word is seen used in the definition of Business Support Services ( Operational assistance ). Thus it is very much clear that management of immovable property does not include operation activities. In addition, it cannot be said that the appellants are doing management service for the reason that the management service is done by appellants to themselves and not to any other person. The appellants are operating the power plant to genera

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performance target referring to which it becomes entitled to any reward or incurs penalties. Such provisions in the O&M contract fortify our finding that the appellants were not rendering any advisory services and were engaged in activities which could be measured such as generation of power in the instant case. We have seen that in generating power, the 31. appellant did not render any advice to improve the functioning of the working system of another organization. They ruin the facility and organized the required materials through the owner and services of their own staff. These activities did not constitute services to any other person/organisation. These impugned functions were incidental to their main activity of producing power. The O&M contract is a works contract and it is bad in law to vivisect it and tax certain activities covered by the contract. A reading of the whole contract makes it plain that the same was intended to ensure generation and supply of power as per

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n to the lump sum payment, it also provides for bonus and penalty. The terms of the contract do not envisage or involve providing any consulting or engineering help to the owner. The operator is fully autonomous and responsible for the performance of operation and maintenance. Whatever engineering issues are involved, it is for the operator to find solutions for, and attend to in the course of operation and maintenance. He is not required to render any advice or to take any orders from the owner. He cannot pass on the responsibility for operating the plant in any manner to the owner. Thus, there are no two parties, one giving advise and the other accepting it. Service tax is attracted only in a case involving rendering of service, in this case, engineering consultancy. That situation does not take place in the present case. Therefore, we are of the opinion that the duty demand raised is not sustainable. The learned SDR s contention about the 46th Amendment and the Apex Court s decision

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In Re: M/s. Toshniwal Brothers (SR) Private Limited

2019 (2) TMI 126 – APPELLATE AUTHORITY FOR ADVANCE RULING, KARNATAKA – TMI – Intermediary services – pure and mere promotion and marketing services – after sale support services – place of supply of services – naturally bundled services – section 12 of the Integrated Goods and Services Tax Act, 2017 – composite supply of services – principal supply – client is overseas entity – exports or not – zero-rated supply – challenge to AAR decision.

Whether the promotion and marketing activities undertaken by the Appellant for the overseas Principal, are to be classified as ‘intermediary services’? – Held that:- There does not seem to be any difference between the meaning of the term “intermediary” under the GST regime and pre-GST regime. In the pre-GST regime, an intermediary referred to a person who facilitates the provision of a main service between two or more person but did not include a person who provided the main service on his account. Similarly, in the GST regime, an intermedia

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ing such goods on his own account.

The argument of the Appellant that the promotion and marketing services are supplied to the Principal on their own account and hence they fall within the exclusion clause of the definition of intermediary is not a correct interpretation of the law – the Appellant is clearly facilitating the supply of the products of the overseas client directly to the client’s customers in the territory of India and is not supplying such goods on his own account. Therefore, the Appellant does not fill within the ambit of the exclusion.

The decision of the AAR is upheld that the service of promotion and marketing of the products of the overseas client is in the nature of facilitating the supply of the products of the overseas client and is appropriately classified as an ‘intermediary service’ as defined under Section 2(13) of the IGST Act – Having concluded that the service supplied by the Appellant is classified as an ‘intermediary service’ as defined unde

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installation support or after sale support is required – the after sales support service, although rendered in a composite manner with the promotion and marketing service is not a composite supply. The price for the after sale support service is clearly identifiable and has been so stated in the contract itself – ruling of AAR upheld.

Whether the above contracts would qualify as exports in terms of Section 2(6) of the IGST Act and Will be a zero-rated supply as provided under Section 16 of the said Act? – Held that:- One of the important requirements for supply of any service to be treated as ‘export of service’ is that the place of supply of service is outside India. The provisions for determination of place of supply of services where the location of the supplier or the location of the recipient of services is outside India are contained in Section 13 of the IGST Act, 2017. Thus. the entire issue is intrinsically related to determination of ‘place of supply’ of service by the a

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materia and have the same provisions in like matter and differ from each other only on a few specific provisions. Therefore unless a mention is particularly made to such dissimilar provisions, reference to the CGST Act Would also mean reference to the corresponding similar provisions in the KGST Act. The present appeal has been filed under section 100 of the Central Goods and Service Tax Act 2017 and Karnataka Goods and Service Tax Act 2017 (herein after referred to as CGST Act, 2017 and SGST Act, 2017) by M/s. Toshniwal -Brothers (SR) Private Limited, (hereinafter referred to as Appellant ) against the advance Ruling No. KAR ADRG 23/2018 Dated: 19th sept 2018, = 2018 (10) TMI 597 – AUTHORITY FOR ADVANCE RULINGS, KARNATAKA Brief Facts of the case: 1. M/s. Toshniwal Brothers (SR) Private Limited is a company located at, No. 11, AECS Layout, 4th Main, 3rd Cross, Sanjay Nagar 1st Stage, Geddalahalli, Bengaluru – 560094, having GSTIN number 29AAACT2881R1ZJ, 2. The Appellant -states that he

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ducts are placed directly by the prospective customers on the overseas entity. The applicant is not engaged in trading of such goods, either on his own account or on the account of the overseas client. The promotion and marketing of the products involves the following activities: i. Applicant advertises the details of the goods to the prospective customers; ii. Provides demonstration of the products to the various prospective customers located in India; iii. Communicates and corresponds about all the relevant information to the prospective customers in connection with the goods; iv. Communicates with the overseas clients about comments and queries of the prospective customers; and v. Reviews the credit rating of the prospective customers of the overseas entity on regular basis; b. After sale support services: The prospective customers who are desirous of importing the said equipment will issue a purchase order to the overseas supplier and agree on the pricing and supply details. On the

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t orders for the products in India, to the overseas entity. These business reports would normally include: i. Short and medium term forecasts detailing prospective customer s name, order value, anticipated placement and expected delivery dates and long term project and prospect lists; ii. Results of regular observation of marketing conditions, information in the public domain relating to the activities of competitors; and iii. Results of participation in trade fairs. 5. The Appellant filed an application for Advance Ruling under section 98 of the CGST Act, 2017 and KGST Act, 2017 on the questions a. Whether pure and mere promotion and marketing services will be intermediary services for the purposes of section 12 of the Integrated Goods and Services Tax Act. 2017 for determining the place of supply of such services? b. If after sale support services are also provided under a composite contract, would it then be composite supply? What will be the principal supply for such contracts? e.

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arding obtaining the purchase order, price negotiations and finally supply the goods. Appellant is involved only in the promotion and marketing of the goods of the overseas entity on his own account. Hence the activity undertaken by the Appellant, by way of promotion and marketing services are not intermediary services, In support of this. Appellant had drawn the attention of the Learned Authority for Advance Ruling (in short LAAR) to the Advance Ruling pronounced under the Service tax provisions in the case of GoDaddy India web Services (P) Ltd. (Ruling No. AAR/ST/08/2016, dated 4th March 2016 Application No. AAR/44/ST/15/2014) = 2016 (3) TMI 355 – AUTHORITY FOR ADVANCE RULINGS wherein the Authority has clearly demarcated the meaning of intermediary services and ruled that pure marketing and promotion services would not be intermediary services. 6.2. The appellant also submitted before the Authority that, Clause 30 of Section 2 of CGST Act, 2017 provides the meaning of composite suppl

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that the principal supply will be promotion and marketing services. 6.3. Appellant further submits that the services i.e., promotion and marketing services and after sale services as a whole, would be the export of services as provided in clause 6 of section 2 of IGST Act, 2017 because, i. The supplier of services, i.e. Appellant, is located in India; ii. The recipient of services, i.e. overseas entity, is located outside India; iii. The place of supply of service, is outside India; iv. The payment for such services will be received by the supplier of services in convertible foreign exchange; and v. The supplier of service and the recipient of service are not merely establishments of a distinct person in accordance with Explanation 1 in Section 8 of IGST Act, 2017. Thus, they submitted that the supply of said services by the company are export of services and consequently will become a zero-rated supply as provided in Section 16 of IGST Act, 2017. 7. The Karnataka Authority for Advanc

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, 2017 and KGST Act, 2017 on the following grounds. 8.1. The Advance Ruling Authority has erred in holding that the services provided is of the nature of facilitating the supply of goods, and Would amount to intermediary services for the purposes of determination of place of supply of such services. Further, after-sale services provided are not in the nature of a composite contract and they are independent from the services provided and hence there is no question of determination of what will the principal supply is without consideration of the facts of the case and applicant s interpretation of law. 8.2. Appellant submits that, the LAAR has considered the appellant who acts as an agent and an intermediary to the overseas entities based on the certain interpretations made in the agency contract entered into between Brabender GMBH & Co.KG and the appellant. The interpretations of the authority are- Appellant acts as an intermediary on behalf of principal while negotiating business t

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se VI of the agency contract. In view of this the LAAR is of view that since the agent is having the right to receive commission from principal tar the sales contracts negotiated, Appellant can be termed as playing the role of an agent to the overseas entity. 8.3. Appellant submits that, the usage of the words agent or intermediary in the said agency contract should not be interpreted to mean an agent or intermediary as defined under the CGST Act, 2017 and Integrated Goods and Services Tax (IGST) Act, 2017 respectively. 8.4. Section 2(5) of the CGST Act, 2017: Definition of Agent : agent means a person. including a factor, broker, commission agent, arhatia, del credere agent, an auctioneer or any other mercantile agent, by whatever name called, who carries on the business of supply or receipt of goods or services or both on behalf of another; The term business of supply or receipt of services must not be literally interpreted since one has to analyse the nature of the transactions carr

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of such goods. Further, the fact that Appellant is not involved in negotiation of the contract and / or supply of goods clearly and unambiguously means that Appellant is not an intermediary . The activities of Appellant are strictly limited to only promotion and marketing of such goods and providing post-sale support at the instruction of the overseas client. Nevertheless, even if Appellant has participated in the negotiation of the prices. the agreement clearly states that the ultimate right to conclude or call-off the contract is with the overseas client itself. In other words, the discussions or mere participation of Appellant in such discussions does not bind either of the parties. 8.5. Appellant further submits that the relationship between the overseas entity and the Appellant that of Principal to Principal as it is narrated in paragraph 2 of the Clause Il (Duties of Agent) of the said agency contract, it states that the agent shall be informing the principal on the market trends

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es, between or more persons, but does not include a person who supplies such goods or services or both or securities on his account. On examination of the aforesaid definition of Intermediary to the instant ease Appellant submits that is not engaged in arranging or facilitating the supply of equipment but is engaged in promotion and marketing services and post-sale support services to the overseas entities which is part of main services. There exists a direct interaction between the customers and overseas entities with regard to price negotiations and delivery of equipment and Appellant has no role with regard to the same since there is no contractual agreement entered into on behalf of overseas entities. This can be substantiated vide the Para 3- Nature of Representative of the copy of the Sales Representation Agreement (which has been reproduced below: – The MANUFACTURERS intends to direct requests received from the territory to the REPRESENTATIVE for further attention and follow up

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tics of an intermediary . It is but essential that the actual scope of work and activities of Appellant should be analysed to classify the same. 8.8. Further, appellant drew the attention of this authority to the judgement pronounced by Authority for Advance Ruling- Maharashtra in the case of IN RE: Five Star Shipping dated 18.04.2018 GST-ARA-18/2017-18/B-26 = 2018 (7) TMI 1182 – AUTHORITY FOR ADVANCE RULING – MAHARASHTRA Considering the analogy adopted in the said judgement that to qualify as an intermediary, there should be two supplies at any one time: (i) the supply between the principal and the third party; and (ii) the supply of his own service (agency service) to his principal, for which a fee or commission is usually charged. The validity of the definition of intermediary services in the instant case should be analysed as the pre-sale and marketing services precedes the actual supply of goods, viz., the supply of goods from the overseas principal to the Indian customer and the

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and submits that the facts and circumstances of the said ease and Appellant s business are same and wholly comparable and thus, the ratio of the said Ruling should be squarely applied to Appellant s case. 8.11. Appellant further submits that the words used in the definition of intermediary services viz., arranging or facilitating has apparently not been defined in the GST provisions and there is no reference to these expression in the allied laws, viz., commodity tax laws such as Service Tax, Central Excise or VAT laws. Therefore, the meaning given to such expressions in the legal dictionaries may be relied upon. Arrange means to make preparation or to place in a desired order and facilitate, means to render easier or absence of difficulty or that which promotes the ease of any action. Thus, only such of the services which will impact as above would qualify as services of arranging or facilitating supply of goods . 8.12. The following factors also help in determination of whether or no

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ny such documentation and/or movement of goods; Thus, they submitted that the services provided by them cannot be said to be intermediary services, by any stretch of imagination, 8.14. Appellant further submits that not all marketing activities will be intermediary services . Only such of the marketing activities (and non-marketing services) which result in arranging or facilitating supply of goods would be termed as intermediary services . In this regard, Appellant drew the attention to the following provisions under the erstwhile Service tax provisions: In Explanation to Section 65(19) of the Finance Act, 1994(Service tax provisions), a commission agent was defined to mean a person who causes a sale or purchase of goods . .. for a consideration . It is important to note that this was different, separate and distinct from intermediary services , since both co-existed under different provisions. Applying the above to Appellant s case, it becomes important to note that Appellant is mere

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agency contract entered into by Appellant with Brabender GMBH & Co. KG which was part of the advance ruling application wherein clause IV of the agency contract mentioned about Agent s Right to a Commission in which In sub-clause 6 it is seen that the consideration is payable for the services which include pre-sales, marketing sales, installation and warranty period services. The agreement quotes the principal as declaring to the agent as under; From our experience for business in your territory it would be commensurate to allocate 25% of total commission earned in each fill system case to address installation and warranty period services which are provided by your company on our behalf to the end customers . The LAAR has concluded that Appellant has been offered commission on the amount of goods sold and this is the method adopted for calculating consideration. Further, that the incidence of after sales and warranty services is contingent upon the successful supply of materials an

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indicators, some of which are listed below: The perception of the consumer or the service receiver. If large number of service receivers such bundle of services reasonably expects such services to be provided as a package, (hen such a package could be treated as naturally bundled in the ordinary course of business. Majority of service providers in a particulars area of business provide similar bundle of services. The nature of the various services in a bundle of services will also help in determining whether the services are bundled in the ordinary course of business. If the nature el services is such that one of the services is the main service and the other services combined with such service are in the nature of incidental or ancillary services which help in better enjoyment of a main service. In other words, in the instant case, the customer being the overseas entity, it is expected that, the person who undertakes marketing and sales promotion also undertake post-sales support; Thi

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ach other: i. In this regard, the Appellant submits that one should not interpret the meaning of conjunction used in the definition of composite supply under GST, as mentioned supra, to the events occurring at the same point of time . The expression conjunction should be understood to mean as offered together as a bundle and not necessarily that they should take place at the same point-in-time. ii. In a business sense, the same has to be understood based on the contractual arrangement entered into between service provider and service recipients. In other words, the activities performed in a contractual arrangement comes under the ambit of conjunction as mentioned in the said definition under GST. And has provided an example of supply of washing machine along with other services like transportation. installation, training and warranty services. 9.3. Further, the appellant has stated that In the instant case, the promotion and marketing services and after sale support services are being

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sales support is ancillary and incidental to the sale, The essential characteristic of the services provided by the Appellant are marketing, sales promotion and brand building; coordination and providing all other support once the product is sold are by products of the sale of the product; In terms of service agreement, promotion and marketing services is the predominant component while installation and warranty services are ancillary to such promotion and marketing services. 10. In respect of Question 3 Appellant submits that Clause 6 of Section 2 of Integrated Goods and Services Tax (IGST) Act, 2017, defines the meaning of export of services. which reads as under: Export of services means the supply of any service when,- i. The supplier of service is located in India; ii. The recipient of service is located outside India; iii. The place of supply of service is outside India; iv. The payment for such service has been received by the supplier of service in convertible foreign exchange;

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ant case, consideration is payable for the supply of services and the overseas entity is liable to pay that consideration for both promotion and marketing services & after sale support services. Therefore, the recipient of both the services, under a bundled contract will be the overseas entity, which is located outside India. 10.2. Determination of place of supply of services: The Appellant submits that place of supply shall be determined as provided in Section 13 of IGST Act, 2017 because location of supplier is in India and location of recipient is outside India. As per section 13(2) of IGST Act, 2017, the place of supply of services shall be the location of the recipient of services. Further, the location of the recipient of services is a place outside India. Therefore, the place of supply for promotion and marketing services shall be the place outside India. 10.3. Further the appellant has reiterated the grounds filed before the AAR the provisions of clause 6 of sec 2 of IGST A

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ales promotion and marketing services and after sale Support services are being provided on a single contractual arrangement entered into with the customer and hence such services are naturally bundled and supplied in the conjunction with each other and thus qualifies the condition of Composite supply under GST. The principal supply Will be promotion and marketing services. 12.1. The Appellant argued to substantiate that the services provided by the Appellant like sales promotion, marketing and after sales service to the overseas entity is export of services and consequently will become a zero-rated supply as provided in Section 16 of IGST Act, 2017. FINDINGS AND DISCUSSIONS 13. We have taken into consideration all the submissions made by the Appellant in writing as well as the detailed arguments made by their representative during the personal hearing. Briefly stated the facts are that M/s. Toshniwal Brothers (SR) Private Limited, is a company engaged in the business of providing mark

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d marketing services provided is in the nature of facilitating the supply of goods and hence would amount to intermediary service , Further, the AAR held that the after-sale support service is independent from the promotion and marketing service and is not a composite supply, 16. The Appellant also sought a ruling on a third question i. e whether the contracts in question would qualify as exports in terms of Section 2(6) of the IGST Act and whether they will be treated as zero-rated supply in terms of Section 16 of the said Act. On this question, the AAR refrained from giving a ruling on the grounds that the question warrants determination of place of supply, which aspect is outside the purview of the AAR. 17. Aggrieved by the above ruling of the AAR, the Appellant is before us in appeal on all the three questions. The Appellant has placed before us the Agency Contract entered into with Brabender GmbH & Co.KG, Germany. We have gone through the contract in detail and the discussions

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e customers about the goods, informing the Principal about the queries and comments of the prospective customers and reviewing the credit rating of the prospective customers. Once the order is finalized between the Principal and the customer and the goods are imported by the customer, the Appellant provides support services by way of installation, initial start-up of the products and demonstration of its satisfactory performance. 18. In the above scheme of activities, the first point for determination is whether the promotion and marketing activities undertaken by the Appellant for the overseas Principal, are to be classified as intermediary services . Let us look at the definition of intermediary service under GST law, Section 2(13) of the IGST Act defines the term intermediary as – a broker. an agent or any other person, by whatever name called, who arranges or facilitates the supply goods or services or both, or securities, between two or more persons. hut does not include a person

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sion or any other person, by whatever name called tends to delimit the scope of the intermediary to apply only to broker or an agent. The words agent, and broker (used in definition of the word intermediary in the IGST act) are only in the broad construct of being an intermediary or a representative, but are not substitutes for each other. In addition. the third part of the definition expands rather than limits the meaning of who an intermediary is to one who is only an agent or a broker. 18.2. Furthers the phrase who arranges or facilitates the supply goods or services or both, or securities, between two or more persons in the clause defining intermediary gives a clear indication of intendment in as much as it ascribes a quality to the person who is to be construed as an intermediary. In Grasim Industries Limited v, Collector of Customs, Bombay [CASE NO.: Appeal (civil) 1951 of 1998, DATE OF JUDGMENT; 04/04/2002] = 2002 (4) TMI 52 – SUPREME COURT OF INDIA, the Supreme Court held that

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supply for a commission. The terms arrange and facilitate have not been defined in the Act. Merriam Webster Dictionary defines the two words as: Facilitate: to make (something) easier; to help Cause (something); to help (Something) run smoothly and effectively. Arrange: to bring about an agreement or understanding concerning; to make preparations: to move and organise (things) into a particular order or position; to organise the details of something before it happens; to plan (something). Therefore. a general understanding of the term arranging or facilitation would cover a very wide range of activities ranging from marketing or sales promotion of the goods or services of the clients locating prospective buyers for the client s products or locating sources of supply of the goods or services required by the Clients price negotiation with the prospective buyer/ prospective supplier, procuring sales orders in respect of the goods or services of the client and like activities. 18.4. When

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Principal; for the sale of the product of the overseas entity. However the Principal shall be free to conclude, or to refuse the conclusion of a contract negotiated by the Appellant and it is binding on the Principal to inform the Appellant about the acceptance, rejection, non-performance or otherwise of a contract, and shall state the decisive reasons underlying his decision unless such statement is prejudicial to his own essential interests. For all contracts of sale of goods which the Principal enters into with customers residing in the Appellant s territory and which have been negotiated by the Appellant, the Appellant shall receive a commission of twelve percent (12%) of the value of goods and in respect of contracts which have not been negotiated by the Appellant, the commission of 6% of the value of the goods will be paid. 18.5. The entire gamut of the above activities viz. the act of identifying the prospective customers in India, promoting the products of the Principal to the

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presentative for all proper purposes. He may be prohibited by the contract from entering into binding contracts but at the same time is authorised by it to act as the go- between the Principal s customers and prospects in India and the Principal itself. 18.6. The Appellant located in India, handles this function- broadly of marketing/business development and customer Support for the foreign entity. Clearly, the engagement of the Appellant in the entire chain of sequence is with reference to the taxable territory and with reference only to such goods that are intended to be sold in India. Devoid of the product and the taxable territory, there is no appreciation which can be had of the supply or the engagement which the Appellant creates. In effect, the basic contention of the Appellant is that the services supplied by him in the form of marketing, market penetration, consolidation, market building and support activity for the goods supplied by a foreign entity in the domestic territory

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keting are being provided to Brabender. Germany on their own account and they are not engaged in buying or selling or supplying goods on behalf of the Principal. It would be worthy to analyze the definition of the term intermediary services under the GST regime and pre-GST regime. Both the definitions have been mentioned below: Under pre-GST regime Under GST regime Rule 2 of the Place of Provision of Services Rules 12 intermediary means a broker, an agent or any other persons by whatever name called, who arranges or facilitates a provision of a service (hereinafter called the main service) between two or more persons, but does not include a person who provides the main service on his account Section 2 13 of Integrated Goods and Services Tax Act, 2017 (IGST Act) intermediary means a broker, an agent or any other person, by whatever name called, who arranges or facilitates the supply of goods or services or both, or securities, between two or more persons, but does not include a person w

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of Brabender between the Principal in Germany and the Principal s customer in India. He is not supplying the products of Brabender on behalf of the Principal. He is only arranging the contact between the Principal and the Principal s customer and the actual supply of the products is done by the Principal directly to the customer. The service of facilitating a supply of goods between the Principal and the customers is provided by the Appellant to the overseas client. The Appellant is not supplying such goods on his own account. 18.9. The argument of the Appellant that the promotion and marketing services are supplied to the Principal on their own account and hence they fall within the exclusion clause of the definition of intermediary is not a correct interpretation of the law. The language of the exclusion clause is such that it is applicable to those persons who supply such goods or service (or both) on their own account. If a person either facilitates or alternately arranges any supp

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client GoDaddy US and provides support services to assist GoDaddy US to develop its brand in India, A ruling was sought whether the various support services provided by GoDaddy India are naturally bundled as a single service being Business support service. The contention of the Revenue was that the various support services provided by GoDaddy India was not a bundle of services but more appropriately covered under intermediary services. The Authority in the said case, after taking note of the fact that the applicant (GoDaddy India) will not be engaged in arranging or facilitating provision of services by GoDaddy US to customers in India, will not secure orders from customers in India or arrange or facilitate the provision of any service by any third party service provider to GoDaddy US, held that the applicant is providing support services in relation to marketing, branding, offline marketing, etc on principal-to-principal basis to GoDaddy US which are a bundle of services naturally bu

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e as defined under Section 2(13) of the IGST Act, it automatically flows that the place of supply of such service will be in terms of Section 13(8) of the IGST Act. 19. Coming to the second question – whether the after-sales service provided under a composite contract would amount to a composite supply and if so what would be the principal supply? Before proceeding any further, let us understand Composite supply as defined in sub section 30 of section 2 of the CGST Act, 2017 which is as under; Composite supply means a supply made by a taxable person to a recipient consisting of two or more taxable supplies of goods or services or both, or any combination thereof, which are naturally bundled and supplied in conjunction with each other in the ordinary course of business, one of which is a principal supply. 19.1. The following parameters are to be applied to the facts of the case to determine whether the supply is a composite Supply or not: two or more taxable supplies of goods or service

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ce and an element of transfer of title in goods in which various elements are so inextricably linked that they essentially form one composite transaction. 19.3. The Appellant has contended that the marketing services and the post sales support services (installation and warranty support) are normally undertaken as a bundle of services; that their principals do not have any presence in India and the Appellant is the Sole representative in the Indian territory for the contracted products; that installation and warranty support services are ancillary to the predominant Service of promotion and marketing and there is a single price for both the services. We have gone through the Agency contract with Brabender, Germany in detail. We find that the Appellant has been engaged to promote and market the products of Brabender, Germany in India. For this purposes the Appellant will advertise the Brabender products to the prospective customers, demonstrate the use of the products, address the queri

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h are typically in the nature of plug-and-play. Further, there are equipments which do not require installation but need to be configured remotely and the same is done by the manufacturers themselves, Therefore, the provision of after sales support by way of installation does not arise in each and every case. It is for this reason that the service recipient has earmarked only 25% of the commission payable as being towards the after sales support service since the same does not arise in every sale made to the customer. Therefore the question of being naturally bundled does not arise for the reason that every promotional activity with prospective customer does not result in a sale. Further, every sale does not necessarily mean that installation support or after sale support is required. Therefore, we are of the view that the after sales support service, although rendered in a composite manner with the promotion and marketing service is not a composite supply. The price for the after sale

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ervice to be treated as export of service is that the place of supply of service is outside India. The provisions for determination of place of supply of services where the location of the supplier or the location of the recipient of services is outside India are contained in Section 13 of the IGST Act, 2017. Thus. the entire issue is intrinsically related to determination of place of supply of service by the applicant. 20.2. The CGST Act limits the Advance Ruling Authority to decide the issues earmarked for it under Section 97(2). In terms of sub-section (2) of Section 97 of the CGST/KGST Act, the question on which the advance ruling can be sought shall be in respect of the following: (i) Classification of any goods or services or both; (ii) Applicability of a notification issued under the provisions of the Act; (iii) Determination of time and value of supply of goods or services or both; (iv) Admissibility of input tax credit of tax paid or deemed to have been paid; (v) Determination

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CGST & CE, Jabalpur. Versus M/s. Jaypee Nigrie Super Thermal Power Project

2019 (2) TMI 554 – CESTAT NEW DELHI – TMI – Levy of duty – residual waste namely, ‘fly ash’ – process of manufacture not taking place – benefit of N/N. 89/95-CE dated 18.5.95 denied – Held that:- The matter is no longer res integra as it has already been decided by Hon’ble High Court of Madras in the case of Mettur Thermal Power Station vs. CBE & C New Delhi [2015 (9) TMI 152 – MADRAS HIGH COURT], where it was held that the commodity ‘fly ash’ cannot be subjected to levy of excise duty because it is not an item of goods which has been subjected to process of manufacture, it may not be necessary for this Court to delve upon any other related issues – demand set aside – appeal dismissed – decided against Revenue. – Excise Appeal No. 52818 of 2018 – FINAL ORDER No.50099/2019 – Dated:- 9-1-2019 – Mr. C L Mahar, Member (Technical) And Ms. Rachna Gupta, Member (Judicial) Shri R K Mishra, AR for the Appellants Shri Anurag Kapur, Advocate for the Respondent ORDER Per C L Mahar: Brief facts of

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classifiable under Chapter heading 26219000 of Central Excise Tariff Act, 1995 under the residual entry and therefore, it is alleged that the respondent assessee should have cleared the fly ash on payment of duty. Accordingly, a show cause notice dated 7.12.2016 came to be issued to the party wherein Central Excise duty of ₹ 48,12,210/- has been demanded under section 11A of the Central Excise Act, 1944. Interest and penal provisions have also been invoked. The matter has been adjudicated vide Order-in-Original dated 28.3.2017 wherein all the charges of the show cause notice have been confirmed by the learned adjudicating authority. The party has approached the Commissioner (Appeals) against the Order-in-Original and the Commissioner (Appeals) vide impugned Order-in-Appeal No. BHO-EXCUS-001-APP-381-17-18 dated 27.10.2017 has allowed the appeal of the respondent-assessee. The learned Commissioner (Appeals) has primarily decided the issue following the judgment of Hon ble Supreme C

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ing the combustion of coal as a fuel to produce steam for generation of electricity. Coal is not tampered with, manipulated or transformed into any end product; the same is burnt to produce steam which is used for generation of electricity. Thus, it is submitted that fly ash emerged during the combustion of coal, cannot be said to have arisen out of any manufacturing process. Since generation of fly ash does not satisfy the test of manufacture which is sine qua non for levy of excise duty under Section 3 of the Excise Act, Central Excise duty cannot be levied on such residual product. This submission is in line with the observations made by the Hon ble Supreme Court in the case of Union of India vs. Ahmedabad Electricity Co. Ltd. [ 2003 (158) ELY 3 (SC) where issue was regarding excisability of Cinder which is unburnt/ partly burnt pieces of coal not capable of producing flame and Hon ble Supreme Court has held that the undue cannot be termed as a manufactured product. 4. An identical

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manufacture; marketability of a product alone is not sufficient for levy of duty. 6. Thus, the emphasis laid by the department in its appeal upon explanation to Section 2(d) of the Excise Act, on the aspect of marketability to bring fly ash within the ambit of excisable goods , alone is not sufficient and such argument is not legally sustainable. 7. We have also heard the learned Departmental Representative who has reiterated the grounds given in the appeal. 8. Having heard both the sides, we are of the view that the matter is no longer res integra as it has already been decided by Hon ble High Court of Madras in the case of Mettur Thermal Power Station vs. CBE & C New Delhi [2016 (335) ELT 29 (Mad)]. Relevant extract of the same are reproduced hereinbelow: 24. It is not in dispute that electricity has been specified in the First Schedule of the Central Excise Tariff under Heading 2716 00 00, but it is not subjected to a duty of excise since under the rate column the duty of excis

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ng the course of manufacture of electricity, which is an excisable good chargeable to nil rate of duty. 25. However, as already this Court held that the commodity fly ash cannot be subjected to levy of excise duty because it is not an item of goods which has been subjected to process of manufacture, it may not be necessary for this Court to delve upon any other related issues. Accordingly, the issue is answered, holding that the good fly ash does not involve any manufacturing activity and it does not fall under the purview of excisable good so as to attract levy of excise duty. 9. Since the facts involved in the present case are identical to and stand decided by Hon ble High Court of Madras in the case of Mettur Thermal Power Station vs. CBE & C New Delhi (supra), we follow the same and decide that the appeal filed by the department is without any substance and merit. Same is dismissed. (operative part of the order pronounced in the Court) – Case laws – Decisions – Judgements – O

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In Re: M/s. The Akshaya Patra Foundation

2019 (2) TMI 832 – AUTHORITY FOR ADVANCE RULING, RAJASTHAN – TMI – Classification of supply – supply of goods or services or both – Mid-Day Meal Programme – Anganwadi meals programme – Charitable Trusts – scope of supply – Preparation and serving of food to children of government schools under Mid-Day meal Program of Government and serving of food under Government sponsored Anganwadi meals – Transfer of goods/capital equipments exclusively used for mid-day meal program and anganwadi meal programme – sale of scrap which was generated during Mid-Day Meal program.

Preparation and serving of food to children of government schools under Mid-Day meal Program of Government and serving of food under Government sponsored Anganwadi meals – Held that:- The activities undertaken by the applicant are not covered under the definition of charitable activities – The activities undertaken by the applicant under Mid-Day Meal Programme and Anganwadi meals programme is a supply in accordance with t

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GST/RGST Act, 2017. Thus, the transfer of goods / capital equipments, exclusively used for Mid-Day Meal (MDM) program and Anganwadi meals program sponsored by Government, between different kitchens of applicant which are 'distinct persons' as per GST law is covered under the scope of 'supply' as per section 7 of CGST/RGST Act, 2017.

Sale of scrap – Held that:- The sale of scrap is an activity of sale for a consideration as mentioned in definition of 'supply' as per section 7 of CGST/RGST Act, 2017. – ARN No. RAJ/AAR/2018-19/28 Dated:- 9-1-2019 – J.P. MEENA AND HEMANT JAIN MEMBER Present for the applicant: Shri Virendra Parwal (Authorised representative) and Shri K.R. Shreedhar (GM, Finance, TAPE) Note: Under Section 100 of the CGST/RGST Act 2017, an appeal against this ruling lies before the Appellate Authority for Advance Ruling constituted under section 99 of CGST/RGST Act 2017, within a period of 30 days from the date of service of this order. The Issue raised by M/s. The Aks

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a day in 2001, now the applicant is reaching out to more than 17 lakh children studying in more than 14000 schools from its 38 kitchens spread over in 12 states across the country. b. The applicant is a charitable trust registered under section 12AA of the Income Tax Act, 1961. c. Mid-Day Meal Scheme: The applicant strives to eliminate classroom hunger by implementing the Mid-Day Meal Scheme in the government and government aided schools. It also aims at countering malnutrition and supporting the right to education of socio-economically disadvantaged children. Since 2001, the applicant has been concerting all its efforts towards providing fresh and nutrition meals to children on every single school day. d. The applicant is also registered under GST for having rental income in Karnataka, Rajasthan, Uttara Pradesh and Telangana. e. The TAPF was formed by Trust deed dated 16 Oct 2001, amended on 20 Feb 2016 with the following objects: Object of the Trust: Relief of the poor, medical relie

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deprived economically backward and poor sections of the society and those hailing from rural area and slums in cities by every possible method, by the provision of free food distribution, relief and sustenance. (c) Evolve means and methods to eradicate child labour in sections of society referred to in sub clause (a) & (b) above in general and especially protecting the children of those sections of society against hazardous labour where the Indian children are at present used and exploited. f. All the activities in connection with the achievement of the above objects will be carried on in India without any commercial motive and the benefits thereof will be available to the public at large without any discrimination on grounds of community or cast or creed or sex. g. The Ministry of Human Resources Development, Government, of India has prescribed a Model MOU for partnering with NGOs for the implementation of Mid-Day Meal program to all the state governments. The copy of the letter

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. Or The First party shall make arrangements for delivery of food grains at the centralized kitchen on the basis of allotted number of children and working days. j. Annual Audit Report – The Second Party will furnish an Annual Audit Report along with audited statement of accounts in terms of all grants received from the State Government, donations received in the name of Mid Day Meal Scheme, both in cash and kind, duly certified by an approved Auditor to the First Party. k. The applicant is operating 38 kitchens across 12 States in the country under the above Guidelines. For each of the kitchen a MOU strictly as per the guidelines of MHRD (as mentioned above) has been entered into with the respective authorities. The Applicant has entered into MOU with the respective State Government to serve Mid-Day Meal to children in government schools. The MOU is made under the framework of Revised Guidelines issued by Ministry of Human Resource Development, Govt, of India, issued from time to time

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ned below:- 1. Government would provide the Food Grains at an agreed quantum per child / meal for the expected average attendance in advance. Applicant shall provide the monthly report of details covering food grains received, utilized and balance in the prescribed format. 2. For other food ingredients and conversion costs, Government would provide the cash conversion cost at agreed rates per child / meal. 3. To enable to reach nutritious, hygienically prepared quality meals to the children, applicant can raise donation, both in cash and kind to meet out deficit 4. All the additional expenses that may be required, on the preparation of the Mid-Day Meal as well as the transportation of the cooked meals to the schools in the project area shall be borne by the applicant 5. Menu will be in accordance as specified by the state Government from time to time. n. The applicant state that the above terms are mentioned commonly in all the MOUs entered into between the applicant with respective St

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given to the Mid- Day Meal program of the applicant from their income. The original sanction was given in 2003 and was being periodically renewed for every 3 years with the latest extension for a period of 3 years commencing from 1st April 2015 to 31st March 2018, copy of sanction letter is enclosed. q. The applicant also carries out other charitable feeding programs such as Anganwadi feeding, wherein the part of the cost is met by Government Subsidy and the remaining cost is met through donations, private school feeding programs where entire 100% cost is met through donations. These programs are quite small in number and constitute about 10% of the total volume of meals. In none of the above programs, the applicant, charge/ receive any money or consideration from the beneficiaries. r. In course of providing Mid-Day Meal sometimes certain goods like spices, food grains, kitchen equipment and relevant spares (Boiler, Conveyor Belt Spares etc.), office equipment (Laptop, Computer, Statio

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the reason that as per the applicant, it is not covered under the scope of 'Supply' in terms of section 7 of the CGST Act/RGST Act. (3) Subject to the provisions of sub-sections (1) and (2), the Government may, on the recommendations of the Council, specify, by notification, the transactions that are to be treated as- (a) a supply of goods and not as a supply of services; or (b) a supply of services and not as a supply of goods. B. Further, the definition of business under Section 2(17) of CGST Act includes- (a) any trade, commerce, manufacture, profession, vocation, adventure, wager or any other similar activity, whether or not it is for a pecuniary benefit; (b) any activity or transaction in connection with or incidental or ancillary to sub-clause (a); (c) any activity or transaction in the nature of sub-clause (a), whether or not there is volume, frequency, continuity or regularity of such transaction; (d) supply or acquisition of goods including capital goods and services

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ipedia defines it as exchange of goods and services, especially on a large scale As per the documents submitted by the applicant we observe that the applicant is reimbursed as per the rate fixed by the Government of India or by the State Government for the transportation charges for lifting food grains from Food Corporation of India godown on basis of the release order. It is further observed that the applicant is also paid / reimbursed of the cooking cost of the meals as per the instructions/ norms of GOI / State Govt. While going through the MOU dated 24-10-2016 for Mid- Day Meal Programme between the District Education Officer (DEO), Elementary Education, Jodhpur and Unit President, Akshaya Patra Foundation Jaipur, it is observed that the applicant is receiving conversion charges from the DEO, Jodhpur for cooking of the meal @ ₹ 4.13 (Class I to V) and ₹ 6.18 (VI to VIII) per child per day meal served. In view of the above observations, the activity of preparation and se

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of (I) terminally ill persons or persons with severe physical or mental disability; (II) persons afflicted with HIV or AIDS; (III) persons addicted to a dependence-forming substance such as narcotics drugs or alcohol; or (B) public awareness of preventive health, family planning or prevention of HIV infection; (ii) advancement of religion, spirituality or yoga; (iii) advancement of educational programmes or skill development relating to,- (A) abandoned, orphaned or homeless children; (B) physically or mentally abused and traumatized persons; (C) prisoners; or (D) persons over the age of 65 years residing in a rural area; (iv) preservation of environment including watershed, forests and wildlife; In view of the above, we observe that the activities undertaken by the applicant are not covered under the definition of charitable activities. E. The activities undertaken by the applicant under Mid-Day Meal Programme and Anganwadi meals programme is a supply in accordance with the Section 7

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rogram and Anganwadi meals program sponsored by Government, between different kitchens of applicant which are 'distinct persons' as per GST law is covered under the scope of 'supply' as per section 7 of CGST/RGST Act, 2017. III. The scrap items (as mentioned in statement of facts by the applicant) which generates during course of the activity of Mid-Day Meal in form of empty oil & other tins, pipes & iron, empty bags, plastic items, cartoons, Flex & Boxes, spare parts of machine / equipment, vehicle & its parts like tyres etc. are sold from time to time is for a consideration. The sale proceeds of these items are recorded under the head miscellaneous income in the books of records. The sale of scrap is an activity of sale for a consideration as mentioned in definition of 'supply' as per section 7 of CGST/RGST Act, 2017. 6. In view of the foregoing, we rule as under:- RULING A. Preparation and serving of food to children of government schools unde

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In Re: IMF Cognitive Technology Private Limited

2019 (2) TMI 918 – AUTHORITY FOR ADVANCE RULING, RAJASTHAN – TMI – Input tax credit – admissibility of credit to the applicant who is registered in Rajasthan State, whereby such tax is paid on inward supplies used for business of person registered in Rajasthan and Central Tax paid in Haryana – Held that:- IGST is payable in the case of inter-state supply of goods and services.

It is observed that in the GST regime SGST and CGST charged for the services provided and availed in a state would be eligible for ITC within that particular state where such services were provided and consumed. As the supplier of services and place of supply both are outside the state of Rajasthan, hence, Input tax credit of Central Tax paid in Haryana is not available to the applicant. – ARN No. RAJ/AAR/2018-19/30 Dated:- 9-1-2019 – J.P. MEENA AND HEMANT JAIN MEMBER Present for the applicant: Shri Jatin Harjai (Authorised Representative) Note: Under Section 100 of the CGST/RGST Act 2017, an appeal again

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uter software and is also engaged in export of software. b. The applicant has taken registration in the State of Rajasthan in Goods and Services Tax Law. c. The applicant procures various goods or services for the purpose of trading and export of goods/ services from state of Rajasthan as well as outside the state in the form of intra-state and inter-state inward supplies. The company claims the credit of taxes paid on goods and services, which are used in the course or furtherance of business and the place of supply of such goods/ services is the state of registered place of business i.e. Rajasthan. d. In case of procurement of inward supplies from other states, at times supplier charges CGST & SGST of the state of supplier. For example, the applicant is registered in the state of Rajasthan and if it procures services of short term accommodation (i.e. hotel) in Haryana, the supplier (i.e. hotel) normally charges of CGST & SGST of that state, due to the reason of place of suppl

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, means the central tax, State tax, integrated tax or Union territory tax charged on any supply of goods or services or both made to him and includes a. the integrated goods and services tax charged on import of goods; b. the tax payable under the provisions of sub-sections (3) and (4) of section 9; c. the tax payable under the provisions of sub-sections (3) and (4) of section 5 of the Integrated Goods and Services Tax Act; d. the tax payable under the provisions of sub-sections (3) and (4) of section 9 of the respective State Goods and Services Tax Act; or e. the tax payable under the provisions of sub-sections (3) and (4) of section 7 of the Union Territory Goods and Services Tax Act, but does not include the tax paid under the composition levy In the case under consideration the hotel services which are procured in the state of Haryana the registered person has paid the CGST (i.e. Central Tax) & Haryana SGST. Such hotel services are being used exclusively for the purposes of bus

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submissions already made in the application for advance ruling and requested that the case may be decided at the earliest. 5. FINDINGS. ANALYSIS & CONCLUSION: The question raised by the applicant is about the eligibility to claim ITC of Central Tax paid in Haryana. The preamble of CGST Act, 2017 is as below: An Act to make a provision for levy and collection of tax on intra-State supply of goods or services or both by the Central Government and for matters connected therewith or incidental thereto. While going through the preamble of the CGST Act, 2017 this authority is of the opinion that CGST is payable in case of intra-state trade or commerce i.e. intra-state supply of goods and services. The preamble of IGST Act, 2017 is as below: An Act to make a provision for levy and collection of tax on inter-State supply of goods or services or both by the Central Government and for matters connected therewith or incidental thereto. Thus, IGST is payable in the case of inter-state supply

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In Re: M/s. K.M. Trans Logistics Private Limited

2019 (2) TMI 919 – AUTHORITY FOR ADVANCE RULING, RAJASTHAN – TMI – Requirement for registration – renting of property in different state – place of business to be considered for the purpose of registration – no billing is done from any other state other than Jaipur – registration of vacant lands on lease for parking of trailers/ trucks at various cities for operational purpose – Held that:- The applicant is supplying transport services to various manufacturers to transport their vehicles to the retail outlets in different states. The applicant is fulfilling the condition of clause (a) of Section 2(71) defining “Location of the Supplier of Service”.

The applicant is registered in Jaipur, Rajasthan which is his place of business from where he is supplying services in Haryana. The same is also evident from the copy of invoices submitted by the applicant during the personal hearing on dated 04.01.20119 wherein invoices are raised by M/s. Maruti Suzuki, Gurgaon in favour of M/s. K.M.

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epresentative) Note: Under Section 100 of the CGST/RGST Act 2017, an appeal against this ruling lies before the Appellate Authority for Advance Ruling constituted under section 99 of CGST/RGST Act 2017, within a period of 30 days from the date of service of this order. The Issue raised by M/s. K.M. Trans Logistics Private Limited {hereinafter the applicant} is fit to pronounce advance ruling as it falls under ambit of the Section 97 (2) (f) and it is given as under: f. whether applicant is required to be registered; Further, the applicant being a registered person, GSTIN is 08AACCK0420F1Z4, as per the declaration given by him in Form ARA-01, the issue raised by the applicant is neither pending for proceedings nor proceedings were passed by any authority. Based on the above observations, the application is admitted to pronounce advance ruling. 1. SUBMISSION OF THE APPLICANT: a. The applicant who is the service provider is having the registered office at Jaipur Rajasthan and providing tr

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address of registered office at Jaipur of the applicant. Sample copies of the agreement with the manufacturer (Maruti Suzuki Ltd, Gurgaon) and lease agreement at Gurgaon is enclosed as Annexure – B & C. e. That the bills of all Input services/ Input goods consumed at addressed at Jaipur and GST Credit is availed centralized at Jaipur. f. That the trucks/ trailers/chassis which are used in providing the transportation services at Pan India are purchased in Rajasthan as well as registered with RTO Jaipur/ Rajasthan and Bills for the Chassis /Trailers/Vehicle is also raised at Jaipur address and Credit of GST Charged by the trader/ manufacturer in Purchases Bills are also availed at Jaipur thus the principal good that is vehicles are technically located at Jaipur and Supply of service is from Jaipur. 2. QUESTIONS ON WHICH THE ADVANCE RULING IS SOUGHT Applicant has sought ruling to be pronounced under section 97 (2) (f) of the CGST Act 2017, on the following questions: a. What should b

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orised representative/ AR) of applicant appeared for personal hearing on 04.01.2019. The AR submitted that the applicant is providing inter-state supply of transport services from the state of Rajasthan. During the PH they reiterated the submissions already made in the application for advance ruling and requested that the case may be decided at the earliest. 5. FINDINGS ANALYSIS & CONCLUSION: We find that the applicant is a service provider of transport services and is registered in state of Rajasthan. As per the submissions made by the applicant the trucks/ trailers/chassis which are used in providing the transportation services at Pan India are purchased in Rajasthan as well as registered with RTO Jaipur. Applicant is registered at Jaipur and makes billing, maintenance accounts and operational control in relation to the services of transport from the registered office at Jaipur. As per section 22(1) of the Central Goods and Service Tax Act 2017 & Rajasthan Goods and Service T

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ce of the supplier; Sec 2(85) defines Place of Business includes a. a place from where the business is ordinarily carried on, and includes a warehouse, a godown or any other place where a taxable person stores his goods, supplies or receives goods or services or both; or b. a place where a taxable person maintains his books of account; or c. a place where a taxable person is engaged in business through an agent, by whatever name called; Section 2(113) defines usual place of residence as; (a) in case of an individual, the place where he ordinarily resides; (b) in other cases, the place where the person is incorporated or otherwise legally constituted; We find that the applicant is supplying transport services to various manufacturers to transport their vehicles to the retail outlets in different states. The applicant is fulfilling the condition of clause (a) of Section 2(71) as mentioned above which is concerned with location of the supplier of service. The applicant is registered in Ja

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urther, the applicant has submitted that he has taken on lease some vacant lands so as to park his vehicles and to provide resting place for drivers. The authorized representative has reiterated the same fact in personal hearing too. The vacant land taken by the applicant is situated in the state of Haryana which is beyond the jurisdiction of this authority. 6. In view of the foregoing, we rule as under:- RULING a. In the instant case, the applicant is providing services from his registered place of business i.e. Jaipur in the state of Rajasthan. Therefore place of business for the purpose of registration is Jaipur. b. The registration under GST regime is applicable on place of supply of goods or services or both. Since in the instant case, as per the facts submitted by the applicant, the place of supply is from the state of Rajasthan, thus applicant is required to take registration at Jaipur, Rajasthan only. c. The vacant land taken on lease by the applicant for parking of vehicles an

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Detection of GST Evasion

Goods and Services Tax – GST – Dated:- 8-1-2019 – Investigation in 3626 cases of GST evasion/violations has been initiated in the present financial year by CGST (Central GST) formations (up to December, 2018). On the basis of investigation conducted so far it emerges that the amount of tax involved in these 3626 evasion/violations cases as mentioned in part(a) above is estimated to be ₹ 15278.18 crore (up to December, 2018) An amount of ₹ 9959.29 crore has been recovered out of total detection amount in the present financial year. (up to December,2018). The following are the figures of tax evasion and recovery in the pre-GST period and the post GST period: Detection F.Y. 2016-17 F.Y. 2017-18 F.Y. 18-19 (Up to Dec, 18) Quantum o

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Applicability of LUT for sale between SEZ Units

GST – Started By: – RAVI ANJANEYULU – Dated:- 8-1-2019 Last Replied Date:- 10-1-2019 – Do we need to take the LUT, from sales being made to one SEZ unit to other SEZ Unit. Please specify the relevant provisons in support of the above. – Reply By KASTURI SETHI – The Reply = Dear Ravi Ji, Answer is, 'NO'. My reply is based on common knowledge and experience. The purpose of LUT and Bond is to safeguard Govt. revenue (Duty/Taxes) in the event of any mis-happening due to natural calamity or

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Casual Tax Registration-Principal Place of Business

GST – Started By: – NEHA GARDI – Dated:- 8-1-2019 – One of our clients ABC Co. registered in West Bengal has purchased goods Ex-Port delivery from Chattisgarh Party XYZ Co. whose goods are lying at Vizag airport and the company is registered at Vizag airport as they dispose goods directly from the Port. Now, as per the provisions Bill to Ship to facilities are not available to importers as per Section 10(1)(b) of IGST Act. As our client ABC Co. are receiving delivery of goods at the port itself

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Advance Ruling

GST – GST FAQ 2nd Edition – June 2017 as Updated as on 1.1.2018 – 17 – Q 1. What is the meaning of Advance Ruling? Ans. As per section 95 of CGST/SGST Law and section 12 of UTGST law, advance ruling means a decision provided by the authority or the Appellate Authority to an applicant on matters or on questions specified in section 97(2) or 100(1) of CGST/SGST Act as the case may be, in relation to the supply of goods and/or services proposed to be undertaken or being undertaken by the applicant. Q 2. Which are the questions for which advance ruling can be sought? Ans. Advance Ruling can be sought for the following questions: (a) classification of any goods or services or both; (b) applicability of a notification issued under provisions of the GST Act(s); (c) determination of time and value of supply of goods or services or both; (d) admissibility of input tax credit of tax paid or deemed to have been paid; (e) determination of the liability to pay tax on any goods or services under th

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n registered under the GST Act(s) or desirous of obtaining registration can be an applicant. (Section 95(b)) Q 6. At what time an application for advance ruling be made? Ans. An applicant can apply for advance ruling even before taking up a transaction (proposed supply of goods or services) or in respect of a supply which is being undertaken. The only restriction is that the question being raised is already not pending or decided in any proceedings in the case of applicant. Q 7. In how much time will the Authority for Advance Rulings have to pronounce its ruling? Ans. As per Section 98(6) of CGST/SGST Act, the Authority shall pronounce its ruling in writing within ninety days from the date of receipt of application. Q 8. What is the Appellate authority for advance ruling (AAAR)? Ans. Appellate authority for advance ruling (AAAR), shall be constituted under the SGST Act or UTGST Act and such AAAR shall be deemed to be the Appellate Authority under the CGST Act in respect of the respecti

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Ans. No, the advance ruling is binding only in respect of the matter referred. It has no precedent value. However, even for persons other than applicant, it does have persuasive value. Q 12. What is the time period for applicability of Advance Ruling? Ans. The law does not provide for a fixed time period for which the ruling shall apply. Instead, in section 103(2), it is provided that advance ruling shall be binding till the period when the law, facts or circumstances supporting the original advance ruling have changed. Thus, a ruling shall continue to be in force so long as the transaction continues and so long as there is no change in law, facts or circumstances. Q 13. Can an advance ruling given be nullified? Ans. Section 104(1) provides that an advance ruling shall be held to be ab initio void if the AAR or AAAR finds that the advance ruling was obtained by the applicant by fraud or suppression of material facts or misrepresentation of facts. In such a situation, all the provisions

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Thereafter AAR will pass an order either admitting or rejecting the application. Q 15. Under what circumstances will the application for Advance Ruling be compulsorily rejected? Ans. Application has to be rejected if the question raised in the application is already pending or decided in any proceedings in the case of applicant under any of the provisions of GST Act(s) If the application is rejected, it should be by way of a speaking order giving the reasons for rejection. Q 16. What is the procedure to be followed by AAR once the application is admitted? Ans. If the application is admitted, the AAR shall pronounce its ruling within ninety days of receipt of application. Before giving its ruling, it shall examine the application and any further material furnished by the applicant or by the concerned departmental officer. Before giving the ruling, AAR must hear the applicant or his authorized representative as well as the jurisdictional officers of CGST/SGST/UTGST. Q 17. What happens i

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CGST/SGST administration in regard to an application for advance ruling. In normal circumstances, the concerned officer will be the officer in whose jurisdiction the applicant is located. In such cases the concerned officer will be the jurisdictional CGST/SGST officer. Any appeal must be filed within thirty days from the receipt of the advance ruling. The appeal has to be in prescribed form and has to be verified in manner as prescribed in the CGST Rules, 2017 The Appellate Authority must pass an order after hearing the parties to the appeal within a period of ninety days of the filing of an appeal. If members of AAAR differ on any point referred to in appeal, it shall be deemed that no advance ruling is issued in respect of the question under appeal. Q 19. Whether Appeal can be filed before High Court or Supreme Court against the ruling of Appellate Authority for Advance Rulings? Ans. The CGST /SGST Act do not provide for any appeal against the ruling of Appellate Authority for Advan

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Appeals, Review and Revision in GST

GST – GST FAQ 2nd Edition – June 2017 as Updated as on 1.1.2018 – 16 – Q 1. Whether any person aggrieved by any order or decision passed against him has the right to appeal? Ans. Yes. Any person aggrieved by any order or decision passed under the GST Act(s) has the right to appeal to the Appellate Authority under Section 107. It must be an order or decision passed by an adjudicating authority . However, some decisions or orders (as provided for in Section 121) are not appealable. Q 2. What is the time limit to file appeal to Appellate Authority (AA)? Ans. For the aggrieved person, the time limit is fixed as 3 months from the date of communication of order or decision. For the department (Revenue), the time limit is 6 months within which review proceedings have to be completed and appeal filed before the AA Q 3. Whether the appellate authority has any powers to condone the delay in filing appeal? Ans. Yes. He can condone a delay of up to one month from the end of the prescribed period

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. Can the Department apply to AA for ordering a higher amount of pre-deposit? Ans. No Q 8. What about the recovery of the balance amount? Ans. On making the payment of pre-deposit as above, the recovery of the balance amount shall be deemed to be stayed, in terms of section 107(7) Q 9. Whether in an appeal the AA can pass an order enhancing the quantum of duty/ fine/ penalty/ reduce the amount of refund/ITC from the one passed by the original authority? Ans. The AA is empowered to pass an order enhancing the fees or penalty or fine in lieu of confiscation or reducing the amount of refund or input tax credit provided the appellant has been given reasonable opportunity of showing cause against the proposed detrimental order. (First Proviso to Section 107(11)). In so far as the question of enhancing the duty or deciding wrong availment of ITC is concerned, the AA can do so only after giving specific SCN to the appellant against the proposed order and the order itself should be passed with

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as it is prejudicial to revenue and is illegal or improper or has not taken into account certain material facts, whether available at the time of issuance of the said order or not or in consequence of an observation by the Comptroller and Auditor General of India, he may, if necessary, he can revise the order after giving opportunity of being heard to the noticee. Q 12. Can the revisional authority order for staying of operation of any order passed by his subordinates pending such revision? Ans. Yes. Q 13. Are there any fetters to the powers of revisional authority under GST to revise orders of subordinates? Ans. Yes. The revisional authority shall not revise any order if (a) the order has been subject to an appeal under section 107 or under section 112 or under section 117 or under section 118 of the CGST Act, 2017; or (b) the period specified under section 107(2) of the CGST Act, 2017 has not yet expired or more than three years have expired after the passing of the decision or order

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condone delay in filing appeal before it beyond the period of 3/6 months? If so, till what time? Ans. Yes, the Tribunal has powers to condone delay of a further three months, beyond the period of 3/6 months provided sufficient cause is shown by the appellant for such delay. Q 17. What is the time limit for filing memorandum of cross objections before Tribunal? Ans. 45 days from the date of receipt of appeal. Q 18. Whether interest becomes payable on refund of pre-deposit amount? Ans. Yes. As per Section 115 of the Act, where an amount deposited by the appellant under sub-section (6) of section 107 or under sub-section (8) of section 112 is required to be refunded consequent to any order of the Appellate Authority or of the Appellate Tribunal, as the case may be, interest at the rate specified under section 56 not exceeding 6% shall be payable in respect of such refund from the date of payment of the amount till the date of refund of such amount. Q 19. An appeal from the order of Tribun

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